Shri Siddhartha Kumar, Dy. ... vs Tribal Co-Operative Marketing ...
2007 Latest Caselaw 643 Del

JUDGMENT

Kailash Gambhir, J.

1. Rule in this matter was issued on 11.3.2005.

2. The petitioner has challenged the order dated 4.12.2001 passed by the respondent, whereby the request of the petitioner to withdraw from his decision of seeking voluntary retirement was turned down. The conspectus of facts as germane to the controversy inter alia are that the respondent had introduced voluntary retirement scheme for the first time on 24.7.2000 and a complete scheme was brought out by the respondent vide circular dated 24.7.2000. Along with said circular the respondent had annexed the scheme which would govern voluntary retirement cases. The aforesaid scheme was initially for a period ending 31.12.2000. However, the same was extended vide another Circular dated 30.1.2001 up to 31st March, 2001 and vide another circular dated 13.6.2001, it was extended till 31.7.2001. The petitioner applied for voluntary retirement vide application dated 28.6.2001 i.e. pursuant to the last circular dated 13.6.2001 under which the desirous employees could apply for voluntary retirement on or before 31.7.2001, thereafter no application was to be entertained by the respondent. The said application of the petitioner which was sent on 28.6.2001 was approved by the Managing Director on 17.7.2001 but even after the acceptance by the respondent, the petitioner vide his representation dated 27.7.2001 sought withdrawal of his application seeking voluntary retirement. According to the petitioner he was to be relieved from the service w.e.f. 31.8.2001 as per the scheme, but due to his said decision of seeking withdrawal of the voluntary retirement the respondent did not relieve him and put on hold their decision by keeping the same in abeyance. Accordingly, the petitioner continued to function in his position. However, vide order dated 4.12.2001 which is impugned in the present petition the request of the petitioner seeking withdrawal from his earlier decision of seeking voluntary retirement was turned down. After the receipt of the said order dated 4.12.2001 the petitioner sent a legal notice dated 7.12.2001 to the respondent but without paying any heed to the said legal notice, the petitioner was finally relieved from his job vide order dated 14.2.2001. Feeling aggrieved the petitioner has sought an order seeking quashing and setting aside of the order dated 4.12.2001 with a further direction to the respondent to allow the petitioner to continue in the said post as if no application seeking voluntary retirement was preferred by him.

3. Counsel for the petitioner contends that as per Clause IV of the circular dated 24.7.2000 the application of the petitioner seeking voluntary retirement was to be processed by the respondent management within a month from the closure of the scheme which in the present case was 31.8.2001 as under the extension dated 30.6.2001, the scheme stood closed on 31.7.2001, where after no application was to be entertained by the respondent. The case of the petitioner is that the respondent had accepted the request of the petitioner in haste without even waiting for the last date of closure of the scheme to expire and acceptance was communicated to the petitioner vide letter dated 17.7.2001. Counsel for the petitioner further contends that the petitioner was well within its rights to withdraw his request as deadline fixed in the extension letter to relieve the petitioner was fixed by the respondent itself as 31.8.2001. Counsel for the petitioner submits that the withdrawal made by him vide his application dated 27.7.2001 was well before the closure of the scheme and at least much before the deadline set by the respondent for relieving the employees seeking voluntary retirement. In support of his arguments counsel for the petitioner has relied upon the judgments of the Supreme Court in J.N. Srivastava v. Union of India and Anr. , Balram Gupta v. Union of India and Anr. , Union of India v. Gopal Chandra Misra , Balram Gupta v. UOI (1980) Suppl. SCC 228, Punjab National Bank v. P.K. Mittal (1989) Suppl. to SCC 175, Shambhu Mohan Sinha V. Projects & Development India Union of India v. T.Parthasarathy (2001) 1 SCC 158 and the decision of the Division Bench of this Court in Devi Ram v. Union of India and Ors. 136(2007) DLT 593(DB).

4. The Hon'ble Supreme Court in Bank of India v. O.P. Swarnakar after discussing various judgments on the point in issue has held as under:

It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement.

111. In Shambhu Murari Sinha case 5 it was held: (SCC pp. 442-43, para 18)

18. Coming to the case in hand the letter of acceptance was a conditional one inasmuch as, though option of the appellant for the voluntary retirement under the Scheme was accepted but it was stated that the 'release memo along with detailed particulars would follow'. Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated 7-8-1997 and 24-9-1997, but there was no response from the respondent. By office memorandum dated 25-9-1997 the appellant was released from the service and that too from the next day. It is not disputed that the appellant was paid his salaries etc. till his date of actual release i.e. 26-9-1997, and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and the said relationship continued till 26-9-1997. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the appellant had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end.

112. It may be that therein there did not exist a clause to the effect that once an option to voluntary retirement is accepted, the employee cannot withdraw the same, but the law laid down therein would apply herein also.

113. The submission of the learned Attorney-General that as soon as an offer is made by an employee, the same would amount to resignation in praesenti cannot be accepted. The Scheme was in force for a fixed period. A decision by the authority was required to be taken and till a decision was taken, the jural relationship of employer and employee continued and the employees concerned would have been entitled to payment of all salaries and allowances etc. Thus it cannot be said to be a case where the offer was given in praesenti but the same would be prospective in nature keeping in view of the fact that it was come into force at a later date and that too subject to acceptance thereof by the employer. We, therefore, are of the opinion that the decisions of this Court, as referred to hereinbefore, shall apply to the facts of the present case also.

5. To controvert the arguments advanced by the counsel for the petitioner, counsel for the respondent has submitted that voluntary retirement sought by the petitioner is governed under the Voluntary Retirement Scheme and not any other statutory rules. In support of his argument counsel for the respondent has relied upon the circular dated 24th July, 2000. The relevant portion of the scheme is reproduced below:

4. The Competent Authority, within a period of 30 days from the date of receipt of the said application, shall take a decision to accept or reject the said application and shall communicate the decision to the official concerned.

6. Counsel for the respondent has contended that pursuant to circular dated 13.6.2001, petitioner made an application and similarly all eligible and interested employees were called upon to send their voluntary retirement application duly filled in latest by 31.7.2001. In said circular, it was also intimated that applications received after 31.7.2001 would not be entertained and the date of relieving the interested and eligible employees for voluntary retirement will be on or before 31.8.2001 and no request for relieving after 31.8.2001 would be considered. Counsel for the respondent further relied upon the voluntary retirement scheme and has contended that under the heading "PROCEDURE" it was mentioned that an employee can be permitted to withdraw his application for voluntary retirement before the management notifies in writing to him about the decision to accept his request for voluntary retirement. It has also been stated in the scheme that competent authority within a period of 30 days of receipt of the application shall take the decision to accept or reject the application and shall communicate the same to the official concerned. It would be relevant to reproduce the para IV of the Voluntary Retirement Scheme which is at page 18 of the paper book. The same is as under:

PROCEDURE:

1. An eligible employee may submit an application for Voluntary Retirement, under the scheme to the Competent Authority through proper channel in the prescribed format proforma (specimen annexed).

2. An employee can be permitted to withdraw his application for Voluntary Retirement before the Management notifies in writing to him about the decision to accept his request for Voluntary Retirement.

3. In the event of death of the employee during notice period, he would be entitled to the benefits which are admissible in the event of death while in service and not under the Voluntary Retirement Scheme.

4. The Competent Authority, within a period of 30 days from the date of receipt of the said application, shall take a decision to accept or reject the said application and shall communicate the decision to the official concerned.

7. Counsel for the respondent has also drawn my attention to the application of the petitioner dated 28.6.2001 which is at page 30 of the paper book wherein the petitioner has undertaken that he would loose his rights to withdraw the voluntary retirement once it is accepted by the Competent Authority. The same is as under:

...The request for Voluntary Retirement has been made by me after considering the pros and cons of the Scheme and I undertake that I shall loose my right to withdraw the same once it has been accepted by the Competent Authority. I may kindly be relieved along with all VRS benefits by 31.8.2001.

8. On the basis of the para IV of the said scheme, counsel for the respondent has contended that request for voluntary retirement was made by the petitioner on 28.6.2001 and the management had accepted his request on 17.7.2001 which was well within 30 days period as specified in the scheme and therefore, the petitioner had no right to withdraw from the said scheme once acceptance was duly notified by the management. Counsel for the respondent further contends that the withdrawal made by the petitioner vide letter dated 27.7.2001 which too was received by them on 3.8.2001 was beyond 30 days period and therefore, there is no illegality in the impugned order passed by the management declining the request of the petitioner. Counsel for the respondent has also placed reliance on the contents of the application as made by the petitioner whereby he has clearly stated that the request for voluntary retirement was made by him after considering the pros and cons of the scheme and after giving undertaking that he would loose his rights to withdraw the same once it is accepted by the competent authority. Counsel for the respondent thus submitted that the decision taken by the respondent is absolutely legal, valid and binding upon the petitioner and the petitioner could not have been allowed to resile from his decision once the acceptance within the specified period was duly communicated by the respondent to the petitioner. Counsel for the respondent further submitted that the Scheme as envisaged by the respondent was duly binding upon the petitioner and all other employees who came forward to seek voluntary retirement. Counsel for the respondent has also stated that once the acceptance was made and the same was duly communicated, then, withdrawal could not be claimed after the date of acceptance. Counsel for the respondent has contended that petitioner had also accepted retiral benefits from the respondent pursuant to the Voluntary Retirement Scheme.

9. In reply to the aforesaid contention counsel for the petitioner submitted that retiral benefits were received by him under protest as the decision at the end of the respondent on his request seeking withdrawal of voluntary retirement was still pending and therefore, it cannot be said that after acceptance of the payment by the petitioner the petitioner could not have challenged the decision of the respondent.

10. In service jurisprudence four types of retirement are contemplated i.e. (a) retirement of superannuation (b) compulsory retirement on a validation (c) compulsory retirement and (d) voluntary retirement. In voluntary retirement, it is the unilateral offer of the employee who under the given circumstances takes a decision through his voluntary act to seek retirement. This voluntary act of the employee can come into force only when the same is accepted by the employer and till the same is accepted the employee seeking voluntary retirement can always change his decision and withdraw his said voluntary act of seeking retirement. Although in the instant case the petitioner had withdrawn his offer of seeking voluntary retirement scheme after the acceptance is communicated by the respondent to the petitioner, yet the issue which needs consideration is whether the respondent could accept the offer even before the closure of scheme.

11. In the present case the respondent itself is responsible for creating the confusion in the minds of its employees desirous of seeking VRS. In the circular dated 24th July, 2000, through which the voluntary retirement scheme was issued by the respondent, in para 4 in very inexplicit terms it is announced that the application of VRS shall be processed by the management within one month from the closure of the scheme. On the other hand in the body of the scheme in sub-para 4 of para IV under the heading 'Procedure' it has been mentioned that the competent authority, within a period of 30 days from the date of receipt of the said application, shall take a decision to accept or reject the said application. In sub-para 2 of Para IV an employee can be permitted to withdraw his application for voluntary retirement, before the management notifies in writing to him about the decision to accept his request for voluntary retirement. Now with these contradictory stipulations in the circular of scheme the interpretation of the same must be given in a manner which can be more beneficial to the employee seeking benefit under the said scheme. By harmonizing the said stipulations one can only interpret that there was nothing wrong on the part of the employee, if he approached the management to withdraw his application within one month from the closure of the scheme. In fact the competent authority should have processed the application forms as received from the employee seeking voluntary retirement only within 30 days after the closure of the scheme and not within 30 days from the date of receipt of the application. The petitioner is thus right in contending that the relationship of employee and employer continued till one was relieved after acceptance of his application within 30 days period after the closure of the scheme. Admittedly in the present case the offer of the petitioner was accepted before the closure of the scheme i.e. on 17th July, 2001 while the scheme itself was closed only on 31st July, 2001. The respondent cannot take advantage of the fact that the petitioner was given his benefits under the voluntary retirement scheme as these benefits were given to the petitioner not only after he had withdrawn from the voluntary retirement scheme vide his communication dated 27.7.2001 but also after he had sent the legal notice dated 7.12.2001 and after his filing first writ petition No. 7536/2001 on 12.12.2001. The petitioner had accepted the said benefits under protest and, therefore, even if the petitioner had received the benefit the doctrine of estoppel will not apply in his case firstly due to the receipt of payment under protest and also on account of the legal steps already initiated by the petitioner prior to the acceptance of the said benefits.

12. The decision of the Division Bench of this Court in Kuldip Gandotra v. UOI and Ors. 125 (2005) DLT 5 (DB) is fully attracted in the facts of the present case and it would be relevant to reproduce the following observations:

In view of the facts stated above, we do not think that principle of estoppel by conduct is applicable. The respondents were fully aware and conscious of the fact that the petitioner was disputing the acceptance of the voluntary retirement and a writ petition had been filed by the petitioner challenging the acceptance as he had withdrawn his offer. With open eyes and fully conscious of the stand of the petitioner, the respondent No. 2 proceeded to make payment of various amounts payable under the voluntary retirement scheme to the petitioner. It is, therefore, not a case in which the respondent No. 2 was forced to change its position and made to believe a particular set of facts on the basis of representation/settlement made by the petitioner, which now the petitioner wants to deny and back out. The respondent No. 2 was conscious and aware that there was a dispute already pending relating to the voluntary retirement application and its acceptance. The respondent No. 2 was also aware and conscious of the fact that the petitioner was receiving payments under protects and it was not a case of unconditional acceptance. We, therefore, do not think that in these circumstances the doctrine of estoppel by conduct is applicable or should be applied.

13. In view of the aforesaid discussion, the writ petition of the petitioner is allowed. The petitioner, who during the course of his arguments has expressed his willingness to return the benefits in one go, is directed to return the benefits to the respondent within four weeks. The order dated 4th December, 2001 whereby the petitioner has been relieved from the service is quashed and the respondent is directed to take the petitioner in service with immediate effect and he will be treated in service as if no application for retirement has been preferred by him.

14. Rule is made absolute.