Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 293 (ORI)

NALINEE KUMAR SAHU v. GOVERNMENT OF ORISSA

2010-04-20

A.S.NAIDU, B.N.MAHAPATRA

body2010
JUDGMENT : A.S. Naidu, J. - The petitioner is an erstwhile employed of Orissa State Co-operative Handicrafts Corporation Ltd. (hereinafter referred to as "the Corporation"). He was appointed as An Asst. Master Craftsman (Scrapping) on 29.7.1985. By office order dated 08.09.1988 his service were regularized w.e.f. 01.9.1986. He was receiving regular scale admissible to the post and it is submitted discharged his duties to the fullest satisfaction of all the authorities concerned. While matter stood thus, the Corporation took a decision to voluntarily retire some of the employees and to down size the surplus and unproductive labour force. Consequently a resolution was passed and Model Voluntary Retirement Scheme was framed by the Corporation by order dated 06.6.1988 (Annexure-3). 2. For the sake of brevity some of the relevant clauses of the Model Voluntary Retirement Scheme, which are necessary for deciding the controversy, are quoted herein below : Clause 3.1 : The eligible employee who desires to seek Voluntary Retirement may apply to the competent authority through his/her head of the Department, in the prescribed format. Clause 3.2 : The decision of the competent authority regarding the acceptance/rejection of the V.R. application shall be communicated to the concerned employee within thirty (30) days of submission of the application. It appears in consonance with the said scheme, the petitioner and others were called upon to submit their options for Voluntary Retirement from the Corporation Service. Accordingly the petitioner submitted his option on 03.5.2001 but unfortunately no decision was taken within the time stipulated in Clause 3.2 of the Scheme. According to the petitioner another notification was issued inviting fresh options on 08.11.2002 and the petitioner once again submitted his option on 08.11.2002. It is submitted that the petitioner waited for two years and as no decision was taken, being frustrated by the callous and apathetic attitude of the authorities, he decided to withdraw his option seeking Voluntary Retirement and communicated the said fact to the authorities concerned on 03.3.2004. It is further stated that by letter dated 24.8.2004, opposite party No. 3 intimated the petitioner that his letter for withdrawing the option to retire under Voluntary Retirement Scheme has been rejected. Thereafter, the petitioner filed several representations and it appears he also approached the learned Civil Judge (Junior Division), Bhubaneswar in C.S. No. 402 of 2005 where an order of status quo was passed. Thereafter, the petitioner filed several representations and it appears he also approached the learned Civil Judge (Junior Division), Bhubaneswar in C.S. No. 402 of 2005 where an order of status quo was passed. Ultimately on 12.1.2006 opposite party No. 2 issued office order accepting the application filed by the petitioner opting Voluntary Retirement w.e.f. 16.1.2006. Being aggrieved by the said action the petitioner has approached this Court. 3. After receiving notice a counter affidavit has been filed by the Corporation inter alia taking the stand that due to certain unfortunate incidents the Corporation sustained huge loss and took a decision to downsize the surplus and unproductive labour force. Consequently a notification was issued calling for options from the eligible employees to submit their applications seeking Voluntary Retirement. In reply to such notification 52 employees of the Corporation including the petitioner exercised their option for Voluntary Retirement. The applications were forwarded by opposite party No. 2 to the State Government for consideration. It is further averred that the Government in Public Enterprises Department by its order dated 14.10.2003 intimated the Corporation as well as other Public Sector Undertaking not to implement the Voluntary Retirement Scheme till funds are made available. Consequently there was delay. It is further submitted that after receiving the clearance from the Government, the application filed by the petitioner and others opting for Voluntary Retirement was accepted by order dated 12.1.2006 and the petitioner was intimated that he would retire from service under the Voluntary Retirement Scheme w.e.f. 16.1.2006. The submission of the petitioner that he had submitted an application on 03.3.2004 (Annexure-7) intimating the Corporation authorities that he wants to withdraw his option of Voluntary Retirement is strongly disputed. It is submitted that no such withdrawal application had been received by the Corporation. 4. After filing of the counter, a rejoinder affidavit has been filed by the petitioner repudiating most of the facts stated in the counter. It is stated that in fact the petitioner had submitted an application intimating the Corporation authorities that he wants to withdraw his application seeking for Voluntary Retirement but then the authorities with an ulterior motive to harass the petitioner did not pursue the same. It is further submitted that as the petitioner had withdrawn his application opting for Voluntary Retirement on 03.3.2004, the decision taken on 12.1.2006 to retire him from service was not tenable in law. It is further submitted that as the petitioner had withdrawn his application opting for Voluntary Retirement on 03.3.2004, the decision taken on 12.1.2006 to retire him from service was not tenable in law. Even otherwise referring to Clause 3.2 of the Model Voluntary Retirement Scheme sponsored by the Corporation, learned counsel for the petitioner submitted that the competent authorities are bound to take a decision either accepting or rejecting the Voluntary Retirement Application filed by an employee as per the terms of the Scheme and communicate the concerned employee with regard to the decision within 30 days of the submission of the application. 5. Admittedly an application was submitted by the petitioner on 03.05.2001 and thereafter on 08.11.2002 but then the Corporation authorities did not intimate the petitioner with regard to the decision taken within the time stipulated i.e. 30 days. Consequently it should be presumed that the application submitted by the petitioner no longer existed and thereafter no decision can be taken on the basis of such application. 6. Learned counsel for the Corporation on the other and submitted that the petitioner had not come to this Court with clean hands and he has suppressed many vital facts. Taking advantage of the status quo order passed by the learned Civil Judge (Junior Division), he did not discharge his duties and even after the suit was withdrawn the petitioner had not informed the Corporation authorities about such withdrawal. Though he was transferred to Boyanika, he never joined there. That apart the delay was caused not due to laches of the Corporation, inasmuch as the Government had intimated the Corporation not to implement the Voluntary Retirement Scheme till funds were made available and only after funds were available a decision was taken by letter dated 12.1.2006, and the petitioner and others were intimated that they have retired from service under Voluntary Retirement Scheme w.e.f. 16.1.2006. He further submitted that out of 52 employees except two including the petitioner, have received the amounts payable under the Scheme and left the Corporation. The petitioner, it is submitted has unnecessarily dragged the Corporation to litigation and as such the Writ Petition may be dismissed. 7. Heard the learned counsel for the parties at length. Perused the materials available on record. The petitioner, it is submitted has unnecessarily dragged the Corporation to litigation and as such the Writ Petition may be dismissed. 7. Heard the learned counsel for the parties at length. Perused the materials available on record. There is no dispute that a Voluntary Retirement Scheme was sponsored by the Corporation with the main objective of downsizing the surplus and unproductive labour force. Applications were invited from the employees who were otherwise eligible to seek Voluntary Retirement. There is also no dispute that the petitioner submitted his application seeking for Voluntary Retirement on 03.5.2001 and again on 08.11.2002. The only controversy raised before this Court is with regard to withdrawal of the option. According to opposite party-Corporation the petitioner never submitted any application seeking withdrawal of his option, where learned counsel for the petitioner submitted that such an application was in fact filed by the petitioner on 03.3.2004 (Annexure-7). Be that as it may, in view of Clause 3.2 of the Voluntary Retirement Scheme sponsored by the Corporation, submission of an application withdrawing earlier option to retire under Voluntary Retirement Scheme becomes redundant. Clause 3.2 specifically stipulates that the decision of the competent authority regarding the acceptance or rejection of the Voluntary Retirement Application shall be communicated to the concerned employees within 30 days of the submission of the application. In view of the aforesaid clear provision and as admittedly the Corporation has not communicated any decision either accepting or rejecting the option tendered by the petitioner for more than two years the said automatically becomes non-operative. Learned counsel for the Corporation in course of hearing, however, submitted that though the petitioner was offered benefits under the Scheme he refused to accept the same. In reply learned counsel for the petitioner submitted that amounts offered to the petitioner was under the old scale of pay thus it was not acceptable by the petitioner. 8. In view of the aforesaid facts and circumstances and the fact that the petitioner is not in service for quite some time and further fact that the Corporation is running at a loss, this Court feels ends of justice and equity will be better served if the decision taken by the Corporation to voluntarily retire the petitioner w.e.f. 16.1.2006 is not interfered with. Therefore, while upholding such decision this Court directs that as the petitioner was in service of the Corporation till 16.1.2006 he shall be entitled to the benefits under the Voluntary Retirement Scheme as per the salary which was prevailing on 16.1.2006. The Managing Director-opposite party No. 2 is directed to scrutinize the records and calculate the retirement benefit of the petitioner as per the scheme taking into consideration the salary which existed on 16.1.2006 and pay the same to the petitioner within a period of three months from the date of communication of this order. With the aforesaid observation this Writ Petition is disposed of. B.N. Mahapatra, J. 9. I agree.