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2012 DIGILAW 64 (ORI)

Bipin Bihari Sahoo v. State of Orissa

2012-02-02

B.K.NAYAK, B.P.DAS

body2012
JUDGMENT B.P. DAS, J. : The case of the petitioner is that while he was working as Jr. Assistant in Lahunipada Branch of Sundargarh district under the Tribal Development Cooperative Corporation of Orissa Ltd. (in short, “T.D.C.C.”), the T.D.C.C., Bhubaneswar, issued a circular dated 5.7.2008 inviting applications for availing retirement under the Voluntary Retirement Scheme (in short, “V.R.S.”). The said circular provides for Model Voluntary Retirement Scheme for the employees of the Public Sector Undertakings of Orissa to downsize the manpower in the Corporation due to deterioration of its financial position. The said Scheme in Annexure-1 provides for objective, eligibility, procedure and Voluntary Retirement Benefits. In Clause-6.1 of the said Scheme, there is a provision for withdrawal of the V.R.S. application, which is reiterated hereunder :- “6.1-Application for Voluntary Retirement cannot be withdrawn after its acceptance is communicated to the employee concerned.” According to the petitioner, he applied for V.R.S. as per the aforesaid scheme vide his application dated 25.7.2008. But after realizing the hardship that would be caused to him and his family members after his retirement and that the Scheme would not be beneficial for him, as his superannuation would be in the year 2016, he immediately by letters dated 5.8.2008 and 6.8.2008 requested O.P.4, Managing Director and O.P.3, President of T.D.C.C. respectively for withdrawal of his application for availing the benefit of the Scheme and the same were sent by fax as well as Post. But surprisingly, the petitioner was served with an order dated 31.8.2008 passed by the Branch Manager, T.D.C.C., Sundargarh, reliving him from service with effect from that date pursuant to the order of the Head Office dated 14.8.2008. The order dated 31.8.2008 is impugned in this case. Hence this writ petition. According to the learned counsel for the petitioner, the petitioner had applied for withdrawal of his option for V.R.S. before the impugned order dated 31.8.2008 was communicated to him. Therefore, there is no scope for the Management to pass the impugned order accepting the V.R.S. application of the petitioner. Hence this writ petition. According to the learned counsel for the petitioner, the petitioner had applied for withdrawal of his option for V.R.S. before the impugned order dated 31.8.2008 was communicated to him. Therefore, there is no scope for the Management to pass the impugned order accepting the V.R.S. application of the petitioner. 2.In the instant case, notice was issued to the opposite parties on 10.9.2009 and considering the hardship of the petitioner, this Court by order dated 3.11.2011 passed an interim order with a direction to the Management to pay a sum of Rs.50,000/- to the petitioner by 30.11.2011 in shape of Demand Draft and the payment would be subject to the result of the writ petition. 3.Counter affidavit has been filed by O.Ps.3 & 4 through one Bamadev Mishra, Branch Manager (Marketing), T.D.C.C., Bhubaneswar. Apart from rebutting the allegations made by the petitioner in this writ petition, a plea has been taken that the Scheme of voluntary retirement was floated in order to downsize the manpower of the Corporation to avoid imminent financial disasters. The averments made in paragraph-12 of the said counter affidavit are reiterated hereunder :- “12. That with regard to the averments made in paragraph-9 of the writ petition, it is humbly submitted that the petitioner was not illegally and arbitrarily relieved from service as his VRS application has been accepted by the competent authority vide O.O. No.3601, dated 14.8.2008 as per provision laid down in Model V.R. Scheme. Besides this, the competent authority has also rejected the withdrawal application of the petitioner, as there is no provision for withdrawal of VRS application, due to poor financial condition of the Corporation as well as no substantial business of the Corporation.” In the counter affidavit, a further stand has been taken that the competent authority has rejected the withdrawal application of the petitioner, as there is no provision for withdrawal of VRS application under the Scheme. After hearing learned counsel for the parties and perusing their pleadings, we have to examine (I) whether the scheme provides for withdrawal of V.R.S. application and (II) whether the petitioner has withdrawn his application before it is accepted. Admittedly, acceptance of V.R.S. application of the petitioner was communicated on 14.8.2008, as it is indicated in paragraph-12 of the counter affidavit. But in paragraph-10 thereof it is indicated that it was accepted on 8.8.2008. Admittedly, acceptance of V.R.S. application of the petitioner was communicated on 14.8.2008, as it is indicated in paragraph-12 of the counter affidavit. But in paragraph-10 thereof it is indicated that it was accepted on 8.8.2008. Annexure-B/3 to the counter affidavit, i.e., communication dated 19.1.2009 issued by the Manager (Finance & Audit), T.D.C.C., says that the competent authority has rejected the representations of the petitioner filed on 5.8.2008, 6.8.2008, 20.10.2008, 12.11.2008 and 12.12.2008. 4.From the above as well as from the documents produced by the O.Ps., specifically the communication dated 19.1.2009, it is clear that the representations of the petitioner dated 5.8.2008 and 6.8.2008 were filed prior to the date of acceptance of V.R.S. application on 8.8.2008, which was communicated to the petitioner vide letter dated 14.8.2008. If we go by Clause-6.1 of the Scheme, the O.Ps. had no other option than to allow the V.R.S. application of the petitioner to be withdrawn, as the same was prior to the date of acceptance of V.R.S. scheme. In this regard, we may refer to a decision of this Court in the case of M.S.P. Dora v. Orissa State Road Transport Corporation and others, 2006 (I) OLR 240 , wherein this Court held that looking at various decisions, law is well settled in the case of Balaram Gupta v. Union of India, reported in AIR 1987 SC 2354 that it was held that dissolution of contract of employment would be brought only on the date of acceptance of option for voluntary retirement and up to that date the appellant therein continued as Government employee. In the case of Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, AIR (1997) 4 SCC 280 , the Court has held that it is now settled legal position that unless the employee is relieved of the duty after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end. In the case of M.S.P. Dora (supra), this Court held as follows :- “15. In the case of M.S.P. Dora (supra), this Court held as follows :- “15. Before we part with and proceed to pass the final order we would like to note here that a person proposing to resign often wavers in his decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out on change of his mind as in the modern and uncertain age it is very difficult to arrange one’s future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardize or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the person concerned to withdraw his letter of retirement. As a model employer government or government run Corporation must conduct themselves with high probity and candour with its employees.” 6.For aforesaid reasons, we quash the order dated 31.8.2008 passed by the Branch Manager, T.D.C.C., Sundargarh (Annexure-4) and direct the opposite parties to permit the petitioner to join his duties. On his joining, the petitioner is entitled to be reinstated in service with all consequential benefits including arrear salary and continuity of service. The opposite parties, however, shall be entitled to deduct the amount of Rs.50,000/- (rupees fifty thousand), which was paid to the petitioner by virtue of the order of this Court dated 3.11.2011. 7.The writ petition is accordingly allowed. No cost. B.K. NAYAK, J.I agree. Petition allowed.