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2003 DIGILAW 243 (GAU)

Atul Borah v. United Bank of India

2003-06-04

B.BISWAS

body2003
JUDGMENT D. Biswas, J. 1. The petitioner joined the services of the United Bank of India in the year 1973. He was promoted from time to time and in the year 1996, was posted as Assistant Regional Manager, Central Assam Region, at Guwahati. The United Bank of India, hereinafter referred to as the Bank, introduced a Voluntary Retirement Scheme by the circular dated December 23, 2000. The petitioner being eligible to seek retirement under the Scheme opted to go on voluntary retirement. About 8 months thereafter, the Bank communicated the acceptance of the application vide letter dated August 29, 2001, and the petitioner was directed to be relieved from the service at the closure of business on August 31, 2001. The said letter dated August 29, 2001 was delivered to the petitioner on August 31, 2001 at 11 A. M. At about 1.30 P.M., the Deputy General Manager (Administration) on the plea of having a look at the acceptance letter took the same from the petitioner. Immediately thereafter, the petitioner was summoned by the Regional Manager and informed that the higher authorities had withdrawn the acceptance permitting him to go on voluntary retirement. The petitioner immediately submitted an application in writing to the Regional Manager informing him about the developments. It was followed by the representation dated September 3, 2001 submitted before the Respondent No. 3, namely, the Regional Manager, wherein it is stated that once his option was accepted and communicated, it was illegal on the part of the authority to resile back. The petitioner came to know that the acceptance was withdrawn in contemplation of initiation of a disciplinary proceeding for alleged misconduct. By the letter dated September 10, 2001 issued by the Assistant General Manager (D&IR), the petitioner was informed that the authority declined to accept the application in view of the provisions in para 4(d) of the Scheme. Hence, this petition for setting aside the order of withdrawal of acceptance, is filed. 2. The respondents, in their affidavit-in-opposition, in para-4, took the plea that withdrawal of the permission is in conformity with the law, inasmuch as a disciplinary proceeding is contemplated against him for misconduct. In para-8 the respondents have spelt out that by the letter dated August 29, 2001, the petitioner was informed about the acceptance of his application for voluntary retirement to be effective at the close of business on August 31, 2001. In para-8 the respondents have spelt out that by the letter dated August 29, 2001, the petitioner was informed about the acceptance of his application for voluntary retirement to be effective at the close of business on August 31, 2001. Though the order of acceptance was handed over to the petitioner on August 31, 2001, having realised that the acceptance was accorded under mistake, it was withdrawn by the letter dated August 31, 2001, issued before the close of business on August 31, 2001. The Bank pleaded that the withdrawal was effected before the cessation of the jural relationship as the petitioner was found ineligible for voluntary retirement under the Scheme for misconduct in the discharge of his duties. 3. Mr. P.C. Deka, learned senior counsel, argued for the petitioner and Mr. S. Dutta, learned counsel for the respondent Bank. 4. Certain undisputed situations arise out of the pleadings on record. The application for voluntary retirement was accepted and it was to be effective at the closure of business on August 31, 2001. The letter of acceptance was taken away at 1.30 P.M. on August 31, 2001 as admitted by the petitioner in his petition. Immediately thereafter, the petitioner was told about the withdrawal of acceptance by the authority. This was, obviously, before the closure of the business on August 31, 2001. 5. The question is whether acceptance of a proposal for voluntary retirement can be, withdrawn after communication and before enforcement thereof? 6. As stated hereinabove, the withdrawal of the letter of acceptance was made at 1.30 P.M. and immediately the petitioner was summoned by the Regional Manger and informed of the decision. This happened before the closure of the business on August 31, 2001. Undisputedly, the acceptance was communicated by the letter dated August 29, 2001 and served on August 31, 2001 at 11 A.M. It means that the decision to accept the proposal was taken either on August 29, 2001 or prior to that. By the letter dated August 31, 2001 (as admitted in para-11 of the writ petition), the Respondent No. 3 informed him that the letter dated August 29, 2001 was withdrawn in view of a contemplated disciplinary proceeding. The decision to withdraw, therefore, also appears to have been taken either on August 31, 2001 or prior to that. This decision was obviously taken before the closure of business on August 31, 2001. The decision to withdraw, therefore, also appears to have been taken either on August 31, 2001 or prior to that. This decision was obviously taken before the closure of business on August 31, 2001. The jural relationship between petitioner and the Bank was to end after closure of business on August 31, 2001. The entire episode relating to the acceptance and withdrawal took place before closure of business hour on August 31, 2001. Therefore, the conclusion will be that the withdrawal was communicated before the petitioner was relieved from service. The jural relationship, therefore, continued. 7. Mr. P.C. Deka, learned senior counsel relied upon the decisions of the Supreme Court in Manjushree Pathak v. Assam Industrial Development Corporation Limited and Ors. and in Shambu Murari Sinha t v. Project & Development India Limited and Anr.. Mr. Deka argued that once the proposal was accepted and the decision thereof was communicated, the Bank had no authority under the law to withdraw the same as the jural relationship came to an end on such communication. Besides, Mr. Deka, also pointed out that the provisions in the scheme do not authorise the Bank to re-call a decision of acceptance after it is communicated. Mr. Dutta, learned counsel for the Bank, refuting the above contention, submitted that the Bank had acted before the order of acceptance came into force and, therefore, the withdrawal will prevail since it was done for contemplated disciplinary proceeding. Shri Dutta also relied upon the decisions of the Hon'ble Supreme Court in Shambu Murari Sinha v. Project Development India and Anr., J.N. Srivastava v. Union of India and Anr. and Balram Gupta v. Union of India and Anr.. 8. Paras 4 and 10 of the Scheme have been referred to during the argument at length. Para 4 deals with the eligibility criteria. Clause (c) of para-4(ii) specifies the employees who are not eligible to exercise option for voluntary retirement. The provisions in Sub-clause (c) debars the employees against whom disciplinary proceedings are contemplated or pending or those who are under suspension. The provision is clear and admits of no ambiguity. Since the Bank comtemplates to initiate a departmental proceeding against the petitioner for misconduct, refusal or, withdrawal of acceptance communicated cannot be treated as without authority of law. The action of the Bank emanates from the decision to proceed against the petitioner for his misconduct. The provision is clear and admits of no ambiguity. Since the Bank comtemplates to initiate a departmental proceeding against the petitioner for misconduct, refusal or, withdrawal of acceptance communicated cannot be treated as without authority of law. The action of the Bank emanates from the decision to proceed against the petitioner for his misconduct. This, in the opinion of the Court, is a good ground for withdrawal of the acceptance before it took effect. There is nothing wrong in the provisions of para-4(ii)(d) of the Scheme. The power to undo is implied with the power to do certain thing. Hence, revocation of the order of acceptance is not without authority of law. 9. Keeping alive to the situation above, I may now refer to the decisions cited at the Bar and the provisions in para-10. In Manjushree Pathak (supra), the voluntary retirement scheme provides that once an employee applies for voluntary retirement, it could not be withdrawn. The appellant therein wanted to avail of the golden opportunity of voluntary retirement as per provisions of the Scheme. The Corporation failed to act within a reasonable time and there was no reason for not accepting the application. The appellant wrote as many as three letters indicating that, in view of the delay in acceptance of her proposal for voluntary retirement, it would be presumed that the proposal has been accepted with effect from a particular date and that she would not attend her duties anymore. The Learned single Judge accepted the case of the appellant and granted relief. The Supreme Court upheld the judgment of the learned single Judge and held, in the circumstances of the above case, the appellant was entitled to the relief claimed in the writ petition. This judgment, in my opinion, is of no assistance to the petitioner of the case at hand. That apart, para-4(ii)(c) clearly specifies that employees against whom disciplinary proceedings are contemplated will not be eligible to seek voluntary retirement under the Scheme. Para-10(d) provides that a mere request of the employee seeking voluntary retirement under the scheme will not take effect until and unless accepted in writing by the competent authority and communicated by the Bank in writing to the applicant. This provision has to be interpreted along with the eligibility clause, para-4 of the circular. Para-10(d) provides that a mere request of the employee seeking voluntary retirement under the scheme will not take effect until and unless accepted in writing by the competent authority and communicated by the Bank in writing to the applicant. This provision has to be interpreted along with the eligibility clause, para-4 of the circular. Even if communicated, the authority has the right to revoke an order of acceptance on any of the grounds specified in para-4(ii) before the jural relationship ceased to exist. The situation would have been altogether different had the revocation been done at a later point of time after closure of business on August 31, 2001. In my opinion, the petitioner does not derive any benefit put of this judgment. This view is consistent with the decision in Shambhu Murari Sinha (supra). In Shambhu Murari Sinha v. Project & Development India and Anr. (supra), the withdrawal by the employee of his proposal for voluntary retirement before the effective date has been held as permissible. Similar is the decision in Balram Gupta (supra) and in J.N. Srivastava (supra). It is clear that an employee exercising option for voluntary retirement is eligible to withdraw the same before effective date, if permitted under the Scheme. In J.N. Srivastava (supra), in para-3 of the said judgment, it has been held that if the voluntary retirement notice is moved by an employee and gets acceptance by an authority, before the date of retirement, the employee has locus penitentiae to withdraw the proposal for voluntary retirement. 10. A careful reading of the aforesaid decisions clearly indicate that an employee is entitled to withdraw his application' for voluntary retirement before the effective date. The "effective date" is the crux of the matter. The right available to an employee for withdrawal cannot be one way traffic. The employer too, for cogent reasons, may avail of the right and revoke the order of acceptance before the effective date. In the instant case, the acceptance having been revoked before it took effect and before cessation of jural relationship, the petitioner is not entitled to any relief. In all fairness, the petitioner should resume his duties and face the departmental proceeding, if any, initiated against him. The period of absence from duty shall be treated as dies non. In the instant case, the acceptance having been revoked before it took effect and before cessation of jural relationship, the petitioner is not entitled to any relief. In all fairness, the petitioner should resume his duties and face the departmental proceeding, if any, initiated against him. The period of absence from duty shall be treated as dies non. The petitioner shall be served with charge sheet within a period of one month from the date of resumption of duty, failing which the petitioner shall be entitled to be relieved from duty on voluntary retirement. 11. Subject to the observations above, the writ petition stands disposed of. Cost easy.