Ashim Kumar Banerjee ( 1 ) WRIT petitioner was a Gynecologist working in Kulti Hospital of Indian iron and Steel Company Ltd. The company was running at a loss for considerable time. The matter was referred to Board for Industrial and financial Reconstruction (hereinafter referred to as "bifr" ). BIFR proposed closure of Kulti Unit so that the other units could be revived by sale of the assets lying in Kulti Unit and applying the said resources for revival of the other units. The Central Government gave financial assistance to the company for implementing Voluntary Retirement Scheme (hereinafter referred to as "vrs") of all the workers of Kulti Unit. Accordingly, the scheme was propounded with the 100% finding by the Central Government to hive off entire work force at Kulti Unit. The VRS scheme was propounded inviting application from the staff of Kulti Unit for VRS. The entire work force applied for VRS within the extended time being March 31, 2003 stipulated in the office circular. ( 2 ) ON March 31, 2003 an office order was issued which provided as follows:-"vr applications of the employees working in Essential services, viz. electrical, water supply, pump house, medical, security, sewerage and town services are under finaliation. In the meantime they should continue to work till further instraction. Name of the personnel and finance department employees will be intimated directly to the concerned department who are required for the essential work. This issues with the approval of the competent authority. "on the same day another circular was issued to following effect:-"vrs applications submitted by the employees upto 31th march, 2003 have been accepted and they stand released w. e. f. 31. 3. 2003 (AN) subject to rigilance and other legal clearance and unless otherwise decided. The employees may please submit "no demand certificate" and complete all the. . . . . . fortheirfinal settlement. This issues with the approval of the competent authority. "on April 11, 2003 a memo was issued to the petitioner to the following effect:-"we wish to inform you that your application for VR has not been considered by the Competent Authority as yet as the medical executives are considered essential and accordingly there service amount be dispensed with by the company at present. The Circular no. WK/per/1333 dated 31. 03. The Circular no. WK/per/1333 dated 31. 03. 2003 as referred to in your application under reference is applicable only in case of employees who are in the non-essential company. This has been further clarified vide circular No. WK/per/1334 of even date whereby it has been categorically informed that employees working in the Medical department should continue to work till further instruction. In view of the above, it is reiterated that your request for VR from the services of the Company has not been acceded to by the competent Authority. This has the approval of the Competent Authority. " ( 3 ) THE order dated April 11, 2003 was impugned in this writ petition, the contents of the said memo were never disputed until the time of hearing of the writ petition before me. On the last day of hearing Mr. Gupta appearing for the company produced a xerox copy of the said memo which did not have the words "as yet". Mr. Dutta appearing for the petitioner strongly opposed the prayer for such production as accounting to him pursuant to the direction of this Court he personally took inspection of the original documents earlier which did not have any such memo as produced by Mr. Gupta. Moreover, the authenticity of the memo annexed by the writ petitioner was never disputed by the company earlier Mr. Gupta lastly contended that he would not be pressing for inclusion of the said subsequent copy as on a plain reading of two copies it would give an identical meaning. ( 4 ) IT now appears on perusal of the pleadings that all employees of kulti Unit were allowed to take voluntary retirement earlier. The authority by their office order dated March 31, 2003 reserved the staff of the essential services for essential work. However, they were also allowed to take voluntary retirement on subsequent date. Even in case of one Dr. Asit Baran mondal the application was initially refused by the authority on the ground that he could not be spared until and unless the hospital was permanently closed. Even then he was allowed to retire prematurely as per the said scheme When the application for voluntary retirement scheme made by the applicant was pending the writ petitioner was issued an order of transfer asking him to join the Gua Hospital of the company. Even then he was allowed to retire prematurely as per the said scheme When the application for voluntary retirement scheme made by the applicant was pending the writ petitioner was issued an order of transfer asking him to join the Gua Hospital of the company. The petitioner refused to join on the ground that since he applied for voluntary retirement being a staff attached to Kulti Division he was entitled to have his application considered. ( 5 ) THE writ petitioner approached this Court earlier on May 7, 2003 when his writ petition was dismissed by Barin Ghosh, J. (as His Lordship then was) holding the same as premature. His Lordship observed in the said order that the service of the petitioner was essential in nature and his application for voluntary retirement had not yet been considered. His lordship categorically held that the application for voluntary retirement had not been rejected. Hence, petition was premature. After the order of His lordship the writ petitioner again wrote to the authority to consider his application for retirement. The authority by their letter dated May 27, 2003 informed the petitioner that the decision of the competent authority had already been communicated to the writ petitioner vide memo dated April 11, 2003 impugned herein. The writ petitioner was served with the order of transfer on January 12, 2004 which was also impugned herein. The writ petition was contested by the company by filing affidavit. In the affidaviit-in-opposition the company took inconsistent stand. In Paragraph 4. 3 the company contended that in the interest of the organization the writ petitioner was transferred to Gua Hospital and his application for voluntary retirement "was not considered by the management". In Paragraph 4. 5 the company contended that the application "was not allowed". In Paragraph 11 it was contended that his request for VRS had not been "acceded to". While making submission on behalf of the company Mr. Gupta tried to contend that the application was still pending even as on the last date of hearing before me. The company in terms of the order of the BIFR wanted to hive off Kulti Unit along with its work force. The Central Government gave 100% financial support for the said purpose. Hence, such financial support must have included the pay packet payable to the petitioner. Two orders were issued by the company on March 31, 2003. The company in terms of the order of the BIFR wanted to hive off Kulti Unit along with its work force. The Central Government gave 100% financial support for the said purpose. Hence, such financial support must have included the pay packet payable to the petitioner. Two orders were issued by the company on March 31, 2003. The first order is a communication of acceptance of all the applications made by the working force of Kulti Unit while the second order was for keeping some applications in abeyance who were attached with essential services. The second group of employees were also released subsequently as I find from the document annexed to the supplementary affidavit pertaining to Dr. Asit Baran Mondal. If one looks to the office orders dated March 31, 2003 read with the observation on the application of Dr. Mondal it would appearthat the intention of the company was to retain the essential staff till the date of final winding up so that the essential services were not disturbed during interregnum. It was never contemplated that any of the staff would be retained for some other purposes. I am constrained to say that the company did not maintain any transparency with regard to the consideration of the application of the writ petitioner. When the earlier writ petition was moved the same was dismissed upon bearing both the parties. His Lordship held that the same was premature as on that date the application was not yet considered. No appeal was preferred by the company. Hence, it is presumed that the company accepted the observation of His Lordship to the effect that on the date of passing of the said orderthe application was not considered. The petitioner immediately wanted to know the fate of his application. The authority consistently stated that the order of 11th April, 2003 would stand. Hence, even on the date of writing of the said letter in May 2003 there was no consideration made on the said application. Admittedly, there was no other subsequent order on this issue passed by the company. Hence, it can safely be inferred that the said application was not yet considered even on the date of final hearing of the writ petition before me. Admittedly, there was no other subsequent order on this issue passed by the company. Hence, it can safely be inferred that the said application was not yet considered even on the date of final hearing of the writ petition before me. If that be the situation the stand of the company in the affidavit to the extent that such request was not acceded to or was rejected, was not a correct stand. Mr. Gupta by his eloquent submission tried to give a harmonious construction of the averments of the affidavit-in-opposition. However, he could not succeed on that score. ( 6 ) LET me now consider the law on the subject. Parties cited the following decisions:- (i) AIR 1995 Supreme Court, Page 176 (Union of India and Ors. v. Sayed Muzaffar Mir), (ii) AIR 1999 Supreme Court, Page 1829 (State of Haryana v. S. K Singhal), (iii) 2000 (7) Supreme Court Cases, Page 390 (Manjushree pathak v. Assam Industrial Development Corporation Ltd. and Ors.), (iv) AIR 2003 Supreme Court, Page 858 (Bank of India v. O. P. Swaranakar ). " (i) AIR 1995 Supreme Court, Page 176 (Union of India and Ors. v. Sayed Muzaffar Mir) : In the instant case the writ petitioner was proceeded with departmentally. He was found guilty of the charges. He was ultimately awarded punishment of removal of service by the appellate authority. The administrative tribunal was approached by the writ petitioner inter alia contending that the order of punishment was bad in view of the fact that the petitioner gave three months notice of retirement and the period expired before the order of removal was passed. Hence, the order of removal was to be treated as nonest in the eye of law. The Apex Court held that when the disciplinary proceeding was pending it was incumbent upon the authority to pass appropriate order withholding permission to retire prematurely or retaining him in service. Hence, the order of removal was to be treated as nonest in the eye of law. The Apex Court held that when the disciplinary proceeding was pending it was incumbent upon the authority to pass appropriate order withholding permission to retire prematurely or retaining him in service. Since no such order had been passed by the authority on expiry of three months period the writ petitioner stood retired prematurely as no formal acceptance was required to be made by the authority as held by a three Judges bench of the Apex Court in the case of Dinesh Chandra Sengupta (AIR 1978 Supreme Court page 17) ; (ii) AIR 1999 Supreme Court, Page 1829 (State of Haryana v. S. K. Singhal) : Under the appropriate rules a Government employee completing 20 years of qualifying service was entitled to give three months notice in writing for premature retirement. Within the period of three months no order of refusal was passed. Hence the Apex court held that the writ petitioner stood retired from service on expiry of the three months period. In the said case the appropriate rule provided that where the appointing authority did not refuse to grant permission for retirement before the expiry of the three months period the retirement would become effective from the date of expiry. Here the Apex Court relied on three bench decision in the Dinesh Chandra sen Gupta (supra ). (iii) 2000 (7) Supreme Court Cases, Page 390 (Manjushree pathak v. Assam Industrial Development Corporation Ltd. and Ors. ). Here also in a similar situation a law officer after completion of 23 years of service applied for premature retirement. The recommending authority on the same day recommended for accepting her voluntary retirement to the competent authority. The competent authority sat tight over the matter despite repeated reminder;; given by her. The apex Court observed that the recommending authority as per clause 4 of the scheme recommended for acceptance of the application. Hence, as per Clause 8. 1 of the scheme the management had discretion to accept or reject the request. However, that did not mean that the respondent authority could abdicate its duty to act reasonably, fairly and judiciously in exercise of discretion. Hence, as per Clause 8. 1 of the scheme the management had discretion to accept or reject the request. However, that did not mean that the respondent authority could abdicate its duty to act reasonably, fairly and judiciously in exercise of discretion. The Apex court held that inspite of remaining silent the authority could have exercised their discretion if not immediately at least within a reasonable time"; (iv) AIR 2003 Supreme Court, Page 858 (Bank of India v. O. P. Swaranakar): In this case the Nationalized bank including State Bank of India formulated a voluntary retirement scheme to hive off extra work force. After the scheme was formulated a large number of employees opted for the same. The banks thereafter withdrew the scheme. Question came up for consideration before the Apex Court as to whether the bank was entitled to do so. The Apex Court held that when the scheme was formulated and the application was made by a concerned employee that was merely an offer and acceptance of offer was within the ambit of the employer and they could not be compelled to accept the same. The Apex Court considered the entire facts and came to the conclusion that the action on the part of the bank authorities was not unreasonable. While doing so the Apex Court observed that the formulation of the scheme was a mere invitation to treat and the application made by the employees was an offer, until and unless the same was accepted by the employer the contract was not concluded. " ( 7 ) IN the instant case though the stand of the company on the voluntary retirement of the application of the petitioner was not a correct stand in fact i find, there was no consistent stand at all. ( 8 ) THE application was made by the petitioner along with the other staff of the Kulti Unit before March 31, 2003. By Order No. 1333 the application made upto the March 31, 2003 were accepted by the single order and they. . . . released with effect from the said date "unless otherwise declined". According to me by this order the company accepted all the application made by the said date unless there was any other order issued on of before that date to the contrary. . . . released with effect from the said date "unless otherwise declined". According to me by this order the company accepted all the application made by the said date unless there was any other order issued on of before that date to the contrary. By the subsequent order No. 1334 the company reserved their decision in respect of the security/emergency staff who were later on released. By the second order it was made clear that those staff were being retained only for the purpose of final winding up of the Kulti division only. On the date of the application petitioner was the staff of the Kulti unit. Hence, on combined reading of the said two orders the petitioners could have been retained only till the date of final winding up of the Kulti Unit. The company could not avoid consideration of the petitioner's application by transferring him to Gua Unit after the date of making of the said application. ( 9 ) ASSUMING the company was entitled to keep the said application pending even after March 31, 2003 and assuming that the petitioner could be transferred by the company in the meaning the company was not entitled to keep the said application pending for eternity. As I have already held earlier that the application for VRS made by the petitioner is still awarting its disposal if I do not accept the first analogy on acceptance of the said application as on March 31, 2003 the company must decide on the said application specially when at their instance the earlier writ petition was dismissed holding the same as premature. ( 10 ) MR. Gupta tried to contend that there was no act of mala fide pleaded in the writ petition. Sitting in Writ Court since I heard the parties at length after completion of affidavits being a Court of equity I am entitled to exmine each and every aspect which are borne out from records. I reiterate that the company was not transparent enough to decide on the application of the petitioner for VRS. They mi st decide on the same if it has not yet been decided and such decision can only be in favour of acceptance in view of the fact that the intention of the management was apparent from their conduct. I reiterate that the company was not transparent enough to decide on the application of the petitioner for VRS. They mi st decide on the same if it has not yet been decided and such decision can only be in favour of acceptance in view of the fact that the intention of the management was apparent from their conduct. The sequence of event would suggest that there was a direction from BIFR to hive off the entire work force of Kulti Unit. Such direction was adhered to by the Central Government by giving the entire financial back up. The company in my view, could not have singled out the writ petitioner on the alleged ground that he was indispensable for them. The company could on or before March 31, 2003 rejected the application by observing as such. They did not do so. I am constrained to observe that the reasons now put forward before me by the company was far from the actual reason. The element of mala fide is exfacie apparent. If I accept that the application stood rejected by order dated April 11, 2003 I will have no hesitation to hold that the same was not a final order of rejection because of the language of the said order. Admittedly there had been no further order issued by the company on such application. Hence, on that ground the company's stand could not be accepted. If I hold that the application has not yet been considered such stand can also not be conceived of because the company being public sector cannot sit over his application for eternity without specifically rejecting the same assigning cogent reason there for On both counts the petition must succeed. ( 11 ) ON a combined reading of the decisions cited by the parties and law decided it appears to me that once scheme is framed for voluntary retirement and employees are allowed to make their offer the authorities are entitled to accept or reject the same. If the authorities remain silent for a considerable period and allow target date to lapse it should be presumed that they accepted such offer. In the instant case the writ petitioner applied for voluntary retirement along with all the employees of Kulti Unit. On March 31. If the authorities remain silent for a considerable period and allow target date to lapse it should be presumed that they accepted such offer. In the instant case the writ petitioner applied for voluntary retirement along with all the employees of Kulti Unit. On March 31. 2003 the authority passed two orders by which they issued a general order of acceptance of all the applications except those essential/emergency staff who were later on released after final winding up of the unit. There was not a single specific order passed as on that date refusing the application of the writ petitioner. The management tried to avoid consideration by transferring the writ petitioner to Gua in the meantime as the scheme was only for Kulti Unit. Such attempt was nothing but a mala fide one. On the date of making of the application the writ petitioner was a member of the Kulti Unit. Hence he should have been considered along ; with other employees. The authorities could have rejected his application by a specific order on or before March 31, 2003. They did not do so. Hence applying the law as decided by the Apex Court the writ petitioner in my view should be entitled to relief as prayed for. Mr. Gupta tried to apply the ratio decided in the case of Bank of India (supra ). I have carefully examined the facts involved therein and law decided by the Apex Court. I am unable to apply such ratio in the instant case. ( 12 ) IN the result, the petition, succeeds. The application of the petitioner for VRS stood accepted by the company. The petitioner would however be released with effect from the date of release of the last employee released by the company from essential services. The writ petitioners should be given appropriate financial benefit. The period of absence would, however, be regularized by adjusting with the leave, if any, lying to the credit of the petitioner. In case the petitioner did not have sufficient number of leave to his credit the petitioner would be granted leave without pay for this period and proper adjustment be made therefor. ( 13 ) THE entire process must be completed by the company within a period of six (6) weeks from the date of communication of this order. In case the petitioner did not have sufficient number of leave to his credit the petitioner would be granted leave without pay for this period and proper adjustment be made therefor. ( 13 ) THE entire process must be completed by the company within a period of six (6) weeks from the date of communication of this order. ( 14 ) WITH these observations writ petition is disposed of without, however, any order as to costs. Urgent xerox certified copy will be given to the parties, if applied for.