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2005 DIGILAW 943 (PNJ)

Gurcharan Singh v. Food Corporation Of India

2005-09-06

NIRMAL YADAV, S.S.NIJJAR

body2005
Judgment S.S.Nijjar, J. 1. With the consent of counsel for the parties, the writ petition is taken up for final disposal at motion stage. 2. On 29.6.2004, Food Corporation of India-respondent No. l (hereinafter referred to as "the FCI") introduced a Voluntary Retirement Scheme (hereinafter referred to as "VRS"). On 28.9.2004, the petitioner submitted his application to avail the benefit of VRS. The Scheme was amended on 5.10.2004, on the demands of the Trade Unions to permit the employees to withdraw the request of seeking VRS, due to the changed family circumstances. In such circumstances, the competent authorities were directed to decide the applications submitted by the employees. On 13.10.2004, the petitioner submitted his application to withdraw the request of voluntary retirement. The Deputy Manager of the FCI under whom the petitioner had been working, recommended his application for withdrawal. It was mentioned that it would be in the interest of FCI to permit the petitioner to withdraw the resignation. However, the request of the petitioner has been denied and he has been ordered to be retired w.e.f. 31.12.2004 by Office Order dated 30/31 December, 2004 (Annexure P-5). The petitioner has challenged the aforesaid order (Annexure P-5) in this writ petition under Articles. 226/227 of the Constitution of India. 3. The respondents have filed a written statement. In paragraph 4 of the written statement, it has been stated that the request of the petitioner cannot be accepted in view of Para VIII (d) of the VRS which reads as under: Once an employee submits his application for voluntary retirement under this scheme to the competent authority, it shall be treated as final and it is not open to the employee to withdraw the same. The competent authority within notice period (3 months) shall take a decision to accept or reject the request and shall communicate the same to the official concerned. 4. It is further stated that the acceptance of the representation of the Union did not give a right to the petitioner to withdraw the option. The discretion was given to the competent authority only to permit the petitioner to allow the withdrawal of option by letter dated 22.9.2004. 5. We have heard the learned Counsel for the parties and gone through the paper-book. 6. Mr. The discretion was given to the competent authority only to permit the petitioner to allow the withdrawal of option by letter dated 22.9.2004. 5. We have heard the learned Counsel for the parties and gone through the paper-book. 6. Mr. A.S. Tewatia, learned Counsel appearing for the petitioner submits that similar provisions contained in the VRS formulated by Nationalised Banks, came up for consideration before the Supreme Court in the case of Bank of India and Ors. v. O.P. Swarankar etc., and the matter is squarely covered by the aforesaid judgment. On the basis of the aforesaid judgment, the petitioner was entitled to withdraw the application for VRS. 7. On the other hand, learned Counsel for the respondents has relied on a judgment of the Supreme Court in the case of Vice Chairman and Managing Director A.P.S.I.D.C. Ltd. and Anr. v. R. Varaprasad and Ors. 2003(3) S.C.T. 919 and submits that the matter is squarely covered by the aforesaid judgment and the petitioner cannot be permitted to withdraw the application. 8. We have considered the submissions made by the learned Counsel for the parties. We are of the considered opinion that the judgment relied upon by the learned Counsel for the respondents in the case of Vice Chairman and Managing Director A.P.S.I.D.C. Ltd. (supra) is not applicable to the facts and circumstances of the present case. In the aforesaid judgment, the Supreme Court held that the ratio of the law laid down in the case of O.P. Swaranakar (supra) was not applicable to the employees whose case was under consideration in the appeal which had been filed by the Corporation. It was held as follows: 18. ...Unlike in those decisions, these respondents filed applications offering to take voluntary retirement under the Scheme; their applications were accepted by the Corporation which were acknowledged by these respondents; they made representations for withdrawal from the VRS Scheme several days after the Corporation accepted their applications made seeking voluntary retirement; merely because they could not be relieved in view of the interim order passed by the High Court in the writ petitions and that they could not be relieved immediately after the cut off date for want of funds to be received from the Government by the Corporation, they could not take away the result or escape consequence of the acceptance. In other words, question of withdrawal of their applications made for seeking voluntary retirement after their acceptance did not arise and they could not be permitted to do so in law. It is fairly settled now that the voluntary retirement once accepted in terms of the Scheme or rules, as the case may be cannot be withdrawn. In these appeals from the facts, it is clear that the applications of the respondents opting for voluntary retirement under the Scheme were accepted and even the acceptance was communicated to them. Thereafter, they filed the writ petitions. Hence, the High Court was not right in allowing the writ petitions holding that they applied for withdrawal before the effective date considering the date of relieving the employees as the effective date. In the light of the discussion made in Civil Appeal No. 5638 of 1999, the High Court, in our view, was wrong in treating 31.7.1999 as an effective date. The decisions relied on by the respondents before the High Court or in this Court on facts do not help them. Moreover, position is to be examined on the facts, terms of the VRS and circumstances governing a particular case of withdrawal offer made seeking voluntary retirement after its due acceptance. These observations would not be applicable to the facts and circumstances of the present case. In paragraph 7 of this writ petition, it has been categorically averred as follows:- 7. That the respondent No. l vide Circular No. EP-01-2004-20 vide No. EP-14(l)/99 dated 22.9.2004 and circulated by respondent No. 2 vide letter No. Estt.31(2)/ services/VRS/2004/1103 dated 5.10.2004 diluted the said Scheme after receiving the representations from trade Unions etc. requesting for modification of the said proviso so as to allow the employees to withdraw their requests for VRS in the wake of the changed in their circumstances. Therefore, as such given discretionary powers to the competent authority regarding withdrawal of the VRS request. The letter dated 5.10.2004 is annexed herewith as Annexure P.2. In the written statement, in reply to the aforesaid para of the writ petition, the respondents have merely stated as follows:- 7. Contents of para 7 are admitted. In view of para VIII(d) of the VRS, the petitioner could not have withdrawn the option. The discretion was given to the competent authority only to permit the petitioner to allow the withdrawal of option vide letter dated 22.9.2004. Contents of para 7 are admitted. In view of para VIII(d) of the VRS, the petitioner could not have withdrawn the option. The discretion was given to the competent authority only to permit the petitioner to allow the withdrawal of option vide letter dated 22.9.2004. A perusal of the aforesaid reply of the respondents would clearly show that the contents of para 7 of the writ petition have been admitted. The VRS has clearly been modified by Letters dated 22.9.2004 and 5.10.2004. The competent authorities were directed to take a decision on the applications for withdrawal. The claim of the petitioner for withdrawal was actually recommended by the competent authority on 13.10.2004. Therefore, the application of the petitioner for withdrawal cannot be deemed to have been accepted before any decision had been taken on the initial application seeking retirement under the VRS. In such circumstances, the matter would be squarely covered by the observations of the Supreme Court in the case of O.P. Swarankar (supra). In the aforesaid case, the Supreme Court considered a common question which arose in all the appeals, "as to whether an employee who opts for the voluntary retirement pursuant to or in furtherance of a Scheme floated by the Nationalised Banks and the State Bank of India would be precluded from withdrawing the said offer" The appeals had been filed against the judgments of various High Courts interpreting the Clauses of the VRS which had been framed by the State Bank of India as well as the Nationalised Banks. The Scheme had been adopted separately, but were almost identical to the Scheme known as Employees Voluntary Retirement Scheme. The Scheme formulated by the Punjab National Bank was also considered. The aforesaid Scheme contained Clause Nos. 10.5 and 10.6 which are as under: - 10.5. It will not be open for an employee to withdraw the request made for Voluntary Retirement under the Scheme after having exercised such option. 10.6. The competent authority shall have absolute discretion either to accept or reject the request of an employee seeking Voluntary Retirement under the Scheme depending upon the requirement of the Bank. The reasons -for rejection of request of an employee seeking voluntary retirement shall be recorded in writing by the competent authority. Acceptance or otherwise of the request of an employee seeking voluntary retirement will be communicated to him in writing. 9. The reasons -for rejection of request of an employee seeking voluntary retirement shall be recorded in writing by the competent authority. Acceptance or otherwise of the request of an employee seeking voluntary retirement will be communicated to him in writing. 9. A large number of employees submitted their applications out of whom small number of employees withdrew their offer. Despite withdrawal of their offer, the same was accepted. Questioning the action of the Banks in accepting the applications of the concerned employee despite their withdrawal, writ petitions were filed in this Court, in the Bombay High Court and in the Uttranchal High Court. This Court vide is judgment dated 3.4.02, inter alia, held as follows:- That the V.R. Scheme as framed is not a valid piece of subordinate legislation inasmuch as the provisions of Section 19, Sub-clause (1) and Sub-clause (4) of the Act have not been complied with and has, therefore, to be set aside. Even if it is assumed for the sake of arguments that the scheme is validly framed, it would be open to an employee to withdraw his option before the same has been accepted and effectively enforced. For the reasons recorded above, we allow 71 writ petitions i.e. C.W.P. Nos. 1458, 1472 of 2001 and C.W.P. Nos. 303 and 1765 of 2002 etc. etc. in which the petitioners have made a prayer for the withdrawal of their options and the impugned orders accepting the options of voluntary retirement stand quashed. All these petitioners shall be reinstated in service with all consequential benefits. It is; however, made clear that those petitioners who have received the benefits under the scheme including the exgratia payment whether with or without protest, shall return the entire amount received by them with interest at the rate of 9% per annum from the date of the receipt of the said amount till the date of return. On return of the aforesaid amount, the consequential benefits regarding the payment of arrears of salary and allowances from the date of their release to the date of reinstatement shall be given to them by the respondents. These petitioners shall also have the benefit of continuity of service and the interregnum period shall be regularised in accordance with law and regulations. 10. These petitioners shall also have the benefit of continuity of service and the interregnum period shall be regularised in accordance with law and regulations. 10. The Bombay High Court and other High Courts also held that the employees have indefeasible rights to withdraw their offer before the same is accepted. Before the Supreme Court, it was argued that having regard to the purport and object sought to be achieved by the Scheme, Clause 10.5 of the Scheme cannot be said to be illegal as by submitting themselves thereto, the concerned employees must be held to have resigned in presenti and in that view of the matter the contractual bar contained therein cannot be held to be bad in law. After considering the entire matter, the judgment of this High Court has been upheld, except the finding that the scheme is ultra vires being violative of Sub Regulation (4) of Regulation 19 of the Regulations. The employees were entitled to seek withdrawal of their earlier applications seeking benefit under the Voluntary Retirement Scheme. The contractual bar contained in Regulation 10.5 was held to be inoperative. In view of the law laid down by the Supreme Court, the petitioner cannot be denied the relief on the basis of para 8(d) of the VRS. Even otherwise, it is to be noticed that the petitioner submitted the application to avail the benefit of VRS Scheme through channel on 28.9.2004. The application for withdrawal of the earlier request was made on 13.10.2004. Under para 8(d) of the VRS, the competent authority was to take a decision either to accept or to reject the application of the employee within a period of three months. The decision had to be communicated to the official concerned. In such circumstances, the petitioner could clearly withdraw the application before the same was accepted. The Supreme Court did not accept the submission of the Attorney General that under Clause 10(5) as soon as the offer is made by an employee for voluntary retirement, the same would amount to resignation in praesenti. Rejecting the aforesaid submission, the Supreme Court held as follows: 113. The submission of 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. Rejecting the aforesaid submission, the Supreme Court held as follows: 113. The submission of 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 concerned employees 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 an acceptance thereof by the employer.... 11. The petitioner having submitted the application for withdrawal within three months of the initial application was merely exercising the right conferred under Para 8 (d) of the VRS w.e.f. 13.10.2004. There would in fact be no application before the respondents for acceptance of the request of the petitioner for retirement under the VRS Therefore, the order dated 30/31.12.2004 (Annexure P-5) rejecting the acceptance of the application Of the petitioner for voluntary Retirement is wholly without jurisdiction. 12. In view of the above, the writ petition is allowed. Impugned order dated 30/31.12.2004 (Annexure P-5) is quashed. The petitioner is directed to be reinstated in service, with all consequential benefits. The said consequential benefits be released to the petitioner in the nature of continuity of service, arrears of salary etc. The respondents are directed to release the consequential benefits to the petitioner within a period of three months of the receipt of a certified copy of this order. No costs.