Mahesh Kumar Sethi vs Union Of India & Ors.
2013 Latest Caselaw 4392 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 6823/2012 &6824/2012

%                                               25th September, 2013

1.           WP(C) 6823/2012& CM No. 12842/2013 & 12843/2013

MAHESH KUMAR SETHI                                        ......Petitioner
                Through:                 Mr. Dipak Bhattacharya and Ms.
                                         Harman Guliani, Advocates.

                          VERSUS

UNION OF INDIA & ORS.                                    ...... Respondents

                   Through:              Ms. Archana Gaur, Adv. for R-1.

                                         Mr. Digvijay Rai, Adv. for R-
                                         2/Airport Authority of India.

2.           WP(C) 6824/2012& CM No. 12838/2013 & 12839/2013

N.K.AWASTHI                                         ......Petitioner
                          Through:       Mr. Dipak Bhattacharya and Ms.
                                         Harman Guliani, Advocates.


                          VERSUS

UNION OF INDIA & ORS.                                     ...... Respondents
                   Through:              Mr. Pradeep Desodya, Adv. for Ms.
                                         Anjana Gosain, Adv. for R-1.

                                         Mr. Digvijay Rai, Adv. for R-
                                         2/Airport Authority of India.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

 VALMIKI J. MEHTA, J (ORAL)

W.P,(C) No. 6823/2012

1. By this writ petition, petitioner seeks the relief that direction should be

issued to the respondent no.2/Airport Authority of India/employer to accept

petitioner‟s request for withdrawal from the VRS application and to reinstate

the petitioner to his previous post. There is also the claim towards back

wages and interest at 12% per annum simple in amounts which are payable

to the petitioner on respondent no.2 illegally refusing to allow the petitioner

to join back his duties.

2. It is not disputed that respondent no.2 introduced a Voluntary

Retirement Scheme (VRS) for employees. Originally the last/cut-off date for

giving of application for VRS scheme was 15.4.2009 as per para 4.4 of the

scheme. This date was subsequently extended to 31.7.2009 as per the letter

dated 5.5.2009 of the respondent no.2. This letter reads as under:-

"AIRPORTS AUTHORITY OF INDIA May 5,2009 No.A.60011/105/2000IR&PPVOL.II/30 Regional Executive Director Airport Authority of India Northern Region/Western Region, DELHI/MUMBAI

Sub: Voluntary Retirement Scheme-2009-Extension of date upto 31.07.2009

Sir, In pursuance of the directions dated 13.04.2009 of the Hon‟ble Delhi High Court in WP(C) 8008 of 2008, the last date for exercising options for VRS was extended upto 30.4.2009 vide our letter dated 20.04.2009. In view of the latest directions dated 30.04.2009 of the Hon‟ble Delhi High Court, the last date for exercising options for VRS is further extended from 30.04.2009. The communications issued on this subject on 08.04.2009 and 20.04.2009 stand modified accordingly.

2. The employees who are willing to avail this opportunity may submit application in the prescribed format already circulated to the respective REDs on or before 31.07.2009 before 1700 hrs. positively and obtain acknowledgement for the same. All other terms and conditions of VRS-2009 already circulated shall remain the same.

3. The issue with the approval of the Competent Authority."

(M.DEY) Executive Director(Pers.)

3. In the present case, petitioner gave an application for voluntary

retirement on 20.4.2009. Petitioner however, withdrew the request for VRS

by his application dated 29.4.2009 i.e well before the cut-off date of

31.7.2009.

4. It has now been consistently held by the Supreme Court in its various

judgments that an application for voluntary retirement can always be

withdrawn prior to the cut-off date and it can be withdrawn even if the

employer prior to the cut-off date accepts the application for VRS. This

aspect was considered by me in the judgment in the case of

R.Kothandaraman Vs. The Speaker, Lok Sabha Secretariat & Anr. in

W.P.(C) 7132/2009 decided on 10.1.2013. Paras 4 and 5 of the said

judgment read as under:-

4. On behalf of the petitioner it has been argued that it is settled law that a person can always withdraw his request for voluntary retirement before the specific cut-off date given whereby the voluntary retirement would become effective. Reliance is placed upon the judgments of the Supreme Court in the cases of Balram Gupta vs. Union of India & Anr., 1987 (suppl.) SCC 228; Shambu Murari Sinha vs. Project & Development India & Anr., 2000 (5) SCC 621 and J.N.Srivastava vs. Union of India & Ors., 1998 (9) SCC 559. On the basis of the judgment in the case of Balram Gupta (supra) it is argued that the petitioner was always entitled to withdraw his request for voluntary retirement on or before 6.9.2008 and which was done vide letter dated 11.7.2008. It is argued on the basis of Balram Gupta (supra) that the reason given of the wife not wanting the voluntary retirement of the petitioner is a justifiable reason seeking withdrawal of the request of voluntary retirement. The judgment in the case of Shambu Murari Sinha (supra) is cited for the proposition that even after the acceptance of the voluntary retirement request is communicated to the petitioner, yet, the request for voluntary retirement can always be withdrawn before the final cut-off date. J.N.Srivastava (supra) case also holds the same as the judgments in the cases of Balram Gupta (supra) and Shambu Murari Sinha (supra).

5. In view of the judgments cited on behalf of the petitioner it cannot be disputed that the petitioner was always entitled to withdraw his request for voluntary retirement prior to the date of the voluntary retirement i.e 6.9.2008. The petitioner had in fact sought withdrawal of his request for voluntary

retirement vide his letter dated 11.7.2008, i.e well before 6.9.2008. Therefore, the petitioner was justified in his request for withdrawal of the request for voluntary retirement and the respondents were bound to accept the request inasmuch as refusal of the wife to agree to the voluntary retirement is a good ground in view of the observations of the Supreme Court in Balram Gupta's (supra) case which holds that pressure of friends and relatives to withdraw a request is a legitimate ground for withdrawing of a request for voluntary retirement.

5. In view of the judgments of the Supreme Court stated in paras 4 and 5

of R.Kothandaraman's case (supra) I may state that it is settled law that

application for voluntary retirement can always be withdrawn prior to the

cut-off date. In the present case, admittedly, the petitioner withdrew the

request for voluntary retirement in terms of his letter dated 29.4.2009, and

which is prior to the last/ cut-off date of 31.7.2009 as stated in terms of the

letter of the respondent no.2 dated 5.5.2009 as reproduced above.

6. I may note that the aforesaid letter of the respondent no.2 dated

5.5.2009 was annexed as Annexure P-13 to the application filed by the

petitioner being CM 12842/2013 and which application was received on

behalf of respondent no.2 on 9.9.2013.

7. Learned counsel for respondent no.2 sought to argue that in the

present case since there is no provision for withdrawal from the VRS

scheme, and therefore, petitioner cannot be allowed to withdraw from the

VRS scheme. This argument is however without any merit because

entitlement of withdrawal from the VRS scheme is not because the scheme

so provides but because it is so provided under the general law laid down by

the Supreme Court judgments that an application made under a VRS scheme

can always be withdrawn before the last/ cut-off date. Therefore, I do not

find any merit in the argument that an application filed for voluntary

retirement cannot be withdrawn because as per the judgments of the

Supreme Court referred to above, the same can always be withdrawn prior

to the cut-off date. As already stated above in the present case cut-off date is

31.7.2009 and application for withdrawal of VRS was filed on 29.4.2009 i.e

well before the cut-off date.

8. It has also been argued on behalf of respondent no.2 that petition is

barred by delay and laches inasmuch as the application for withdrawal from

VRS scheme was made on 29.4.2009 and the writ petition was filed in

October, 2012. I find this argument a wholly misconceived one because

petitioner has been writing to the respondent no.2 from May, 2009 and till

2012 for withdrawal from voluntary retirement, and these about half a dozen

representations are annexed as Annexure P-8 & Annexure P-9 to the writ

petition from pages 81 to 96. Therefore, in my opinion, petitioner has quite

clearly explained the delay and hence there is no delay and laches in filing of

the writ petition.

9. Another argument which was urged on behalf of the respondent no.2

was that petitioner cannot be allowed to withdraw his VRS application as the

respondent no.2 has taken a general decision not to allow withdrawal of the

applications submitted for voluntary retirement and the letter of the

respondent no.2 dated 30.9.2009 filed as Annexure R-2/2 is relied upon for

this purpose. Once again, this argument is without any merit because

entitlement for withdrawal from the VRS scheme does not depend on the

sweet will of the management but is as per law and the law states that VRS

application can always be withdrawn before the last/cut-off date and which

aspect has already been discussed in detail above.

10. Finally, counsel for respondent no.2 very emphatically and

passionately argued that petitioner is not entitled to invoke discretionary

jurisdiction under Article 226 of the Constitution of India inasmuch as

petitioner has relied upon the order dated 30.4.2009 of the respondent no.2

as accepting the VRS application of various persons including the petitioner,

whereas there is no order dated 30.4.2009 and the same is dated 28.4.2009

and thus petitioner is alleged to be guilty of manipulation . In support of the

argument reliance is placed upon the actual letter dated 28.4.2009 filed as

Annexure R-2/1 with the counter-affidavit. In this regard I may state that this

is a disputed question of fact and I cannot decide this disputed question of

fact in this writ petition. The order relied upon by the petitioner specifically

shows the date as 30.4.2009 whereas the order of the respondent no.2 is

dated 28.4.2009. In any case, in my opinion, nothing will turn on this so far

as the merits of the case are concerned because it is settled law that even if

voluntary retirement application is accepted prior to the cut-off date

thereafter, the application seeking voluntary retirement can always be

withdrawn prior to the cut-off date and which in this case was much later

from 30.4.2009 as the last date was 31.7.2009. I may also state that

considering all the aspects of the matter in case the respondent no.2 so thinks

fit, it can file an appropriate criminal case against the petitioner if so

advised.

11. Therefore, the writ petition will have to be allowed and it is held that

petitioner validly withdrew his application for seeking voluntary retirement

under the VRS scheme of 2009 issued by respondent no.2.

12. The issue now remains is that whether petitioner should be granted

any back wages. The fact of the matter is that petitioner withdrew his

application under the VRS scheme well before the cut-off date and petitioner

has also not taken benefits of amount being credited to his account whereby

petitioner would have earned interest on such amount. I may note that the

Supreme Court in the case of State of Kerala & Ors. Vs. E.K. Bhaskaran

Pillai (2007) 6 SCC 524 has held that the principle of „no work no pay‟ is not

of universal application and its application depends on the facts of each case.

In the present case, I find that the petitioner has been unnecessarily

prejudiced on account of wrongful action of the respondent no.2 in not

accepting the request for withdrawal from VRS scheme and therefore while

allowing the writ petition I direct that the petitioner will be paid 40% of his

total monthly salary emoluments w.e.f 1.5.2009 till this judgment and for a

period of two weeks thereafter. Petitioner will join duties with the

respondent no.2 within a period of two weeks from today.

13. In view of the above the writ petition is allowed and it is held that

petitioner did not voluntarily retire in terms of his application dated

20.4.2009 inasmuch as the same was validly withdrawn on 29.4.2009.

Petitioner is ordered to be reinstated by the respondent no.2 and petitioner

will join his duties within two weeks. Petitioner as stated above will be paid

40% of the total monthly emoluments which were payable to him from

1.5.2009 and till passing of this judgment and for a period of two weeks

from today. In the facts of this case where the petitioner quite clearly has

been harassed against the settled legal position entitling withdrawal of an

application for VRS, and respondent no.2 keeping silent to the

representations of the petitioner made over different years from 2009 to

2011, and therefore this writ petition is allowed with costs of ` 25,000/-

against respondent no.2/Airport Authority of India.

WP(C) 6824/2012& CM No. 12838/2013 & 12839/2013

14. The facts of the present case are slightly different, however, inasmuch

as application for voluntary retirement was made on 20.4.2009 and it was

withdrawn on 24.4.2009, adopting therefore the ratio of the judgment in

WPC No.6823/2012, this writ petition is allowed and petitioner is ordered to

be reinstated by the respondent no.2 and petitioner will join his duties within

two weeks. Petitioner as stated above will be paid 40% of the total monthly

emoluments which were payable to him from 1.5.2009 and till passing of

this judgment and for a period of two weeks from today. In the facts of this

case also where the petitioner quite clearly has been harassed against the

settled legal position entitling withdrawal of an application for VRS, and

respondent no.2 keeping silent to the representations of the petitioner made

over different years from 2009 to 2011, this writ petition is also allowed

with costs of ` 25,000/- against respondent no.2.

SEPTEMBER 25, 2013                           VALMIKI J. MEHTA, J.
ib