S.K. Sharma vs Food Corporation Of India And Ors.
2004 Latest Caselaw 5 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner challenges the orders dated 9.6.1997 and 27.6.1997. By the first order, petitioner's offer seeking voluntary retirement was accepted and it was directed that petitioner shall voluntarily retire w.e.f. 1.7.1997 and by the latter, petitioner's request, by way of application dated 7.6.1997, seeking to withdraw his application whereunder he sought voluntary retirement was rejected.

2. Respondent is the Food Corporation of India established under the Food Corporation of India Act, 1964. Service of its employees is regulated by the Food Corporation of India (Staff) Regulations 1971, which are statutory regulations framed in exercise of power vested under Section 45 of the Act.

3. Petitioner joined service under the Government of India in the Food Department and was transferred to the Corporation w.e.f. 1.3.1965.

4. Regulation 22-A of the Regulations gives an option to the employees of the Corporation to seek voluntary retirement. Relevant part of Regulation 22-A reads as follows:

22-A. Voluntary retirement of employees on completion of 20 years of qualifying service--

(1)    At any time after an employee has completed 20 years of Qualifying Service, he may, by giving notice of not less than three months in writing to the Competent Authority, retire form service of the Corporation.
 

(2)    The notice of voluntary retirement given under Sub-Regulation (1) shall require acceptance by the Competent Authority.
 

(6)    The employee of the Corporation who is allowed to retire under this Regulation and has given the necessary notice to that effect to the Competent Authority should be precluded from withdrawing his notice except with the specific approval of such authority.  
 

5. As on 1.4.1997 the petitioner was posted as Deputy Manager under the respondent. On 1.4.1997, petitioner submitted his application seeking voluntary retirement. The application was submitted as per the proforma prescribed. Following was intimated vide serial numbers 6 and 7 of the proforma:
 

6.   Date from which voluntary      30.6.1997 retirement is sought.
 

Notice Period Three months w.e.f. 1.4.1997
 

6. On 7.6.1997 i.e. before expiry of 3 months statutorily prescribed minimum notice period, petitioner submitted an application to withdraw his request for voluntary retirement. Respondent claims that this request was actually delivered on 11.6.1997. (If that be so, it is irrelevant since 3 months' notice period would come to an end on 30.6.1997.

7. On 9.6.1997, the respondent accepted the petitioner's request seeking voluntary retirement. Said order reads as under:

The request dated 1.4.97submitted by Sh. S.K. Sharma DM(QC) for voluntary retirement from FCI under Regulation 22(1) of Food Corporation of India (Staff) Regulations, 1971 has been accepted by the Competent Authority. Accordingly, Sh. S.K. Sharma, DM (QC) shall retire voluntarily with effect from 1.7.97 from the Food Corporation of India under Regulation 22(A) of Food Corporation of India (Staff) Regulations, 1971.

8. Respondent claims that acceptance was prior to date of receipt of the request to withdraw the notice seeking voluntary retirement.

9. On 27.6.1997, the respondent rejected the petitioner's request seeking withdrawal of the notice of voluntary retirement. Following was communicated:

"Sir,

Pleases refer to your application dated 7.6.97 requesting therein for withdrawal of application dated 1.4.97 for voluntary retirement. In this connection it is informed that your request vide application dated 1.4.97 for voluntary retirement under Regulation 22-A of the FCI (Staff) Regulations 1971 has already been accepted by the Competent Authority and orders for the same has already been issued vide office order of even No. dated 9.6.97. As such withdrawal of your application dated 1.4.97 for voluntary retirement cannot be allowed at this stage."

10. As noted in para 1 above, orders dated 9.6.1997 and 27.6.1997 are impugned. Petitioner submitted a representation on 16.7.1997pointing out that he was entitled to withdraw his request seeking voluntary retirement during the notice period which was up to 30.6.1997 and he having done so, be permitted to join duty. This was rejected on 28/29.9.1997. Following was intimated:

'With reference to his representation dated 16.7.97, on the subject, Shri S.K. Sharma Ex-DM (QC) is hereby informed that his request for withdrawal of voluntary retirement notice has been examined but the same has not been agreed to.'

11. Petitioner made representations on 28.10.1997, 12.12.1997, 23.6.1998, 25.5.1999, 18.8.1999, 15.12.1999, 13.3.2000 and 16.4.2000 requesting for a reconsideration. There being no response from the respondent, present petition was filed.

12. Response of the respondent in the counter-affidavit filed is that on 10.3.1997 the petitioner was transferred Out from Delhi. He did not report for duty at his new place of posting. On 27.3.1997 he was directed to report to the Sr. Regional Manager, Punjab. Instead of complying with the said order, petitioner submitted his application for voluntary retirement. Acceptance was communicated on 9.6.1997. Thereafter on 11.6.1997 the respondent received an anti-dated letter dated 7.6.1997 seeking to withdraw, the application seeking voluntary retirement. It was not accepted since petitioner's request for voluntary retirement was already accepted.

13. Relying on the judgment of the Hon'ble Supreme Court, reported as 1998 SCC (L & S) J.N. Srivastava v. U.O.I., learned Counsel for the petitioner contended that ratio of said judgment squarely applied to the present case and result must be the same. In said case, three months notice for voluntary retirement was given on 3.10.1989 which was to come into effect from 31.1.1990. Notice was accepted on 2.11.1989. Employee thereafter sought to withdraw his notice on 11.12.1989. It was held that even where the notice stood accepted, before the expiry of the notice period the employee could withdraw the same.

14. Counsel for the respondent did not seriously dispute the legal position aforesaid. He contended that the petitioner had adopted a strategy to defeat his transfer by first seeking voluntary retirement and on it being accepted he anti-dated a request for withdrawal. The respondent had in the meanwhile made necessary alternative arrangement and therefore petitioner was not allowed to withdraw his notice. Counsel contended that if this Court holds in favor of the petitioner on merits, effect of delay in finding the petition, which was filed on 25.5.2000 i.e. after nearly 3 years, be considered to mould relief as the petitioner would be getting wages for doing no work. Counsel contended that in such eventuality of reinstatement, right of the department to take disciplinary action against the petitioner be protected as the effect of reinstatement would be, putting the clock back to 1997.

15. Regulation 22A, relevant part extracted in para 4 above applies. The aforesaid provision enjoins that an employee of the respondent can apply for voluntary retirement and for such purpose he has to give a notice of not less than 3 months in writing to the Competent Authority. The said notice given under Sub-regulation (1) of Regulation 22-A is to be accepted by the Competent Authority and then only the person could be allowed to retire from the services of the Corporation. It also envisages that an employee of the Corporation would be precluded from withdrawing his notice except with the specific approval of such authority. The proviso stipulates that the request for withdrawal shall be made before the intended date of his retirement. In the present case the petitioner filed his application initially for going on voluntary retirement from services of the Corporation as stipulated in Regulation 22-A(1). The petitioner submitted an application withdrawing his notice. Respondent claims that this was 2 days after it had accepted the offer seeking voluntary retirement, but said fact is irrelevant in light of judgment in J.N. Srivastava's case noted in para 13 above. It is true that such withdrawal of the notice is not permitted without the specific approval of the authority. But in the present case the requirement of the proviso stands satisfied as the request for withdrawal was made by the petitioner before the intended date of retirement. Therefore, the only question that arises for my question is whether the Competent Authority could deny the approval to the petitioner for withdrawing his notice and if so under what circumstances? Similar question came up for consideration before the Supreme Court in Balram Gupta v. Union of India and Anr., . The facts in the said case were almost similar. In the said case, the Supreme Court has held that approval is not ipse dixit pf the approving authority who as the statutory authority must act reasonably and rationally and what is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the Government form withholding the withdrawal. It was further held that in the modern age, embargo could not be put upon people's choice or freedom. It was also held that unless it can be said that any administrative set up or arrangement was affected, permission should be granted to withdraw the request for voluntary retirement.

16. Petitioner gave a reason for withdrawal. While rejecting the request for withdrawal, respondent did not state in the order dated 27.6.1997 that it had made changes in the administrative set up and so arranged its working that petitioner's request could not be accepted. It did not state that reasons urged during hearing as noted in para 12 above. In , Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, it was held:

"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given-by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow order."

17. Respondent cannot therefore be allowed to urge reasons in support of its actions other than the one which finds mentioned in its order of rejection dated 27.6.1997. It gives only one reason, namely, that the respondent had accepted the request for voluntary retirement and therefore permission to withdraw cannot be given. The said reasons run contrary to the current of the law. Law being that before the date of retirement is reached, the employees has locus poenitentiae to withdraw the proposal for voluntary retirement. Ratio of J.N. Srivastava's case (supra) squarely applies. The impugned orders dated 9.6.1997 and 27.6.1997 must therefore go, They stand quashed. Petitioner would be entitled as a consequences to be reinstated in service with effect from 1.7.1997.

18. In the facts and circumstances, what should be the consequential directions. Should the petitioner be entitled to full back wages? Should the petitioner be entitled to get over his transfer posting? Should the respondent be entitled to take disciplinary action against the petitioner for not joining at his place of posting on transfer?

19. Records show that when he made a representation on 16.7.1997 pointing out to the respondent as to why the order dated 27.6.1997 was bad in law, on 28/29.7.1997 the respondent rejected the representation. Petitioner ought to have approached the Court for redressal. Petitioner says he made further representations. In my opinion, non-statutory representations have no meaning. Stand of the respondent, may be wrong, was known to the petitioner on 28/29.7.1997. He should have approached the Court with reasonable dispatch. Petitioner sat at home and came to the Court 2 years and 10 months later. In a case of wrongful termination, where the workman delayed approaching the Court for reinstatement the Hon'ble Supreme Court in its judgment reported as , Gurmail Singh v. Principal, Govt. College of Education & Ors., held that rejection of the claim for reinstatement on grounds of delay was unjustified but denial of back wages was justified. Petitioner must suffer same fate. Petitioner's request for withdrawal of his request seeking voluntary retirement was rejected on 27.6.1997. His representation was rejected on 28/29.7.1997. I direct that while reinstating the petitioner he would not be entitled to any wages for the period 1.8.1997 till 25.5.2000, the date of filing of the petition. Respondent would also be permitted to take disciplinary action against the petitioner for not reporting to the place of posting on transfer vide Order dated 10.3.1997.

20. Petition is allowed as per paras 17, 18 and 19 of the judgment above.