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Orissa High Court · body

2014 DIGILAW 440 (ORI)

Chandrakanta Tripathy v. State of Orissa

2014-07-24

B.R.SARANGI

body2014
Judgment Dr. B.R.Sarangi, J. The petitioner, who was working as Branch Manager (P.F.I & M) under the Tribal Development Cooperative Corporation Orissa Ltd. (TDCC for short) seeks to challenge the order dated 05.05.2008 under Annexure-7 recalling the order relieving him on retirement under the Voluntary Retirement Scheme w.e.f. 31.01.2008 pursuant to order dated 29.01.2008 under Annexure-3 accepting his offer to avail retirement benefits and also initiation of Disciplinary Proceeding framing a memorandum of charge dated 19.05.2008 under Annexure-9 and imposing punishment of compulsory retirement under Annexure-13 dated 19.07.2008 consequentially seeks for direction for release of his retiral benefits on acceptance of V.R.S. by the authority. 2. The epitome of facts of the case, in hand, is that the TDCC issued a Circular on 03.10.2007 in Annexure-1 inviting option from its employees to take retirement under V.R.S. As per the circular, the decision allowing voluntary retirement was to be taken by the State Government in Public Enterprise Department. Accordingly, the petitioner submitted his application for his retirement under V.R.S., vide Annexure-1 on 08.11.2007. His application was allowed, vide Annexure-3 w.e.f 31.01.2008. Accordingly, he was relieved from his duty on 31.01.2008 vide Annexure-4 and the very day he handed over detailed charges of his office as directed to one Sri B. Mishra under Annexure-5. In compliance to the order of the Corporation, the handing over and taking over charge was completed on the same day vide Annexure-6. Though the dues payable to the petitioner were received by the Corporation from the State Government in the P.E. Department vide cheque No. 9054474408 dated 04.04.2008, the same were not paid to the petitioner despite his request. The opposite party no.3 recalled the retirement order of the petitioner under V.R.S. under Annexure-3 unilaterally on 05.05.2008 under Annexure-7. Thereafter the petitioner made a representation to the MD, TDCC-opposite party no.3 on 19.05.2008 under Annexure-8 for payment of his dues under V.R.S. At this stage a memorandum of charges purported to be dated 24.06.2008 under Annexure-9 initiating a Disciplinary Proceeding was served on the petitioner. 3. The petitioner has filed this writ petition on 8.7.2008 challenging the order under Annexure-7 recalling the order of the Corporation allowing him to retire under V.R.S., along with Misc. Case Nos. 8781 of 2008 and 8782 of 2008 for issuance of direction to the Corporation to release his dues having retired under V.R.S. and to stay the Disciplinary Proceeding respectively. The petitioner has filed this writ petition on 8.7.2008 challenging the order under Annexure-7 recalling the order of the Corporation allowing him to retire under V.R.S., along with Misc. Case Nos. 8781 of 2008 and 8782 of 2008 for issuance of direction to the Corporation to release his dues having retired under V.R.S. and to stay the Disciplinary Proceeding respectively. This Court issued notice to the opposite parties on admission by special messenger, vide order dated 22.8.2008 without passing any order in the Misc. Cases. 4. During pendency of the writ petition, the order of punishment of compulsory retirement has been passed on 19.7.2008 under Rule 38 of the TDCC Employees Service Rules, 1990. On 5.9.2008 this Court passed an interim order in Misc Case No. 11753 of 2008 directing status quo with regard to petitioner?s service to be maintained and directing the opposite parties not to take any coercive action against the petitioner pursuant to the disciplinary proceedings. By way of amendment, the order of compulsory retirement passed against the petitioner has been brought on record, which is the subject-matter of challenge in this writ petition. 5. Pursuant to notice, counter affidavit has been filed by the opposite party No. 3 justifying the action taken by the corporation in recalling the order allowing the application of the petitioner to retire under V.R.S and consequential initiation of proceeding and putting the petitioner on “compulsory retirement” as a measure of punishment. Rejoinder affidavit has also been filed by the petitioner controverting the contention raised in the counter affidavit. 6. Mr. R.K. Mohanty, learned Senior Counsel appearing for the petitioner, strenuously urged that pursuant to V.R.S, petitioner having applied for his voluntary retirement, the same was accepted by the State Government and accordingly the dues payable under V.R.S having been released in favour of the Corporation for payment to the petitioner, the order allowing the petitioner to retire under VRS could not have been recalled without assigning any reason and as such, the unilateral recalling the V.R.S order without giving him opportunity whatsoever violates the principles of natural justice. Once the prayer for retirement of the petitioner under V.R.S had been accepted by the P.E. Department and the same had been acted upon by handing over and taking over charges of the office as per direction of the Corporation the authorities of the Corporation could not have recalled the acceptance of the prayer of the petitioner to retire under V.R.S. 7. It is further submitted that initiation of proceeding against the petitioner by issuing a memorandum of charge is also vitiated as no opportunity had been given to the petitioner to have his say in accordance with IDCC Employees Disciplinary Proceedings & Appeal Rules, 1986 without causing an inquiry and affording opportunity to the petitioner put forth his grievance and supplying copy of the inquiry report to him. 8. Ms. S.L. Pattnaik, learned counsel for opposite party no.3, supports the stand of the Corporation as regards the contention raised in the counter affidavit. In support of her contention, she relied upon the judgment of the Apex Court in U.P. State Sugar Corpn. Ltd. and Ors. v. Kamal Swaroop Tondon, AIR 2008 SC 1235 . 9. In this backdrop, it is admitted that circular dated 31.2.2007 was issued under Annexure-1 inviting applications from the employees of the Corporation desirous of availing the benefits of V.R.S. through their Branch Manager/Controlling Officer in the prescribed format by 15.11.2007 and on receipt of such applications the same were processed subject to final approval of the P.E. Department. As per the Circular, the petitioner submitted his application, which was placed before the P.E. Department for approval and P.E. Department approved the same directing the petitioner to handover the charges and released the V.R.S. benefits in favour of the Corporation to be paid to the petitioner. Thus, the direction of the P.E. Department was complied with by accepting the application under V.R.S. relieving him from duty w.e.f 31.1.2008 and handing over and taking over charge having already been done vide Annexure-6 thereby there was acceptance of the application of the petitioner to retire under V.R.S., and authorities acted upon the same and received the dues to be released in favour of the petitioner. At this juncture on 19.5.2008 in Annexure-8 the impugned order was passed recalling the order allowing the petitioner to retire under V.R.S. w.e.f. 31.1.2008 and memorandum of charges was framed against the petitioner on 19.5.2006 vide Annexure-9 and on 19.7.2008 as per Annexure-13 order was passed imposing punishment of compulsory retirement from service. 10. Clauses 6.1 and 6.5 of the V.R.S. scheme under Annexure-2 read as follows; “6.1 Application for Voluntary Retirement cannot be withdrawn after its acceptance is communicated to the employee concerned. 6.5. If any employee is under criminal or disciplinary proceedings for recovery of any specified amount, the said amount shall be with-held from the amount of ex-gratia payment under the Voluntary Retirement Scheme. Only in the eventuality of his final exoneration, the said amount will be released in his favour. Therefore, the authorities could not have withdrawn the order allowing the petitioner to retire under V.R.S. as it had been communicated to the petitioner and the same had acted upon by handing over and taking over of charge. 11. The Apex Court in Ashok Kumar Sahu v. Union of India and others, ( 2006 (6) SCC 704 = AIR 2006 SC 2876 held as follows : “28. Cases of voluntary retirement can broadly be divided into the following three categories: (i) Where voluntary retirement is automatic and comes into force on the expiry of notice period; (ii) When it comes into force; unless an order is passed within the notice period withholding permission to retire, and (iii) When voluntary retirement does not come into force unless permission to this effect is specifically granted by the Controlling Authority. 12. In State Bank of Patiala v. Romesh Chander Kanoji and others, (2004) 2 SCC 651 , it is categorically held that after the date of closure of VRS, the parties stood precluded from withdrawing it in view of the judgment of the Apex Court in Bank of India and others v. O.P.Swarnakar and others, (2003) 2 SCC 721 . The view taken in State Bank of Patiala v. Jagga Singh, (2004) 2 SCC 201 has also impliedly affirmed the view taken in O.P.Swarnakar case (supra). 13. The conditions under Clause 3.2 in Annexure-2 reads as follows : “The decision of the competent Authority regarding the acceptance/ rejection of the VR application shall be communicated to the employee within 30(thirty) days of receipt of the application. 13. The conditions under Clause 3.2 in Annexure-2 reads as follows : “The decision of the competent Authority regarding the acceptance/ rejection of the VR application shall be communicated to the employee within 30(thirty) days of receipt of the application. In case of acceptance, the employee concerned should be relieved from the organization forthwith. A bare perusal of Clause 3.2 read with Clause 6.1, reveals that the decision of the competent authority regarding acceptance/ rejection of the application for retirement under V.R.S. shall be communicated to the employee within thirty days of receipt of the application. In case of acceptance, the employee concerned should be relieved from the organization forthwith. Therefore, the application submitted for retirement under V.R.S. by the petitioner having been accepted by the Corporation forwarded to the P.E. Department for its approval and on approving the same, computation of benefits under the scheme have been transmitted by the P.E. Department to the Corporation for onward payment to the petitioner, and further directing the petitioner to handover charge and in consequence thereof, handing over and taking over charge having already been completed, that itself indicates that the application of the petitioner for retirement under VRS had been accepted and the same had been acted upon in terms of the scheme itself. 14. The term under the VRS being a contractual one, the same cannot be unilaterally changed subsequently at the caprices and whims of the authorities. In Ashok Kumar Sahu (supra), it is held that the expression “approval” would mean to accept as good or sufficient for the purpose of intent. “Approve” means to have or express a favourable opinion of/to accept as satisfactory. Therefore, once P.E. Department has approved, that meant that P.E. Department expressed favourable opinion to accept satisfactorily, pursuant to which consequential action was taken directing the petitioner to hand over charge by releasing the dues in favour of the Corporation to be paid to the petitioner. Therefore, any action taken subsequent thereto by the authorities cannot be sustained in the eye of law. 15. In Bank of India and others v. K.V.Vivek Ayer and another, (2006) 9 SCC 177 , it is held that once the scheme, which is contractual in nature has been accepted and on that basis it has been acted upon, the same cannot be withdrawn and the parties cannot be permitted to approbate and reprobate. 16. 15. In Bank of India and others v. K.V.Vivek Ayer and another, (2006) 9 SCC 177 , it is held that once the scheme, which is contractual in nature has been accepted and on that basis it has been acted upon, the same cannot be withdrawn and the parties cannot be permitted to approbate and reprobate. 16. In view of the provisions contained under Clause 6.1 stated above, the application for voluntary retirement cannot be withdrawn after its acceptance is communicated to the employee concerned. Therefore, the application of the petitioner having been considered by the Corporation and approval having been made by the P.E. Department pursuant to circular under Annexure-1 and the dues of the petitioner having been determined and released by P.E. Department for onward payment to the petitioner and the application of the petitioner for retirement under V.R.S. having been accepted in toto, the same could not be withdrawn in view of the conditions stipulated under Clause 6.1. Thus, the impugned order passed recalling the order of retirement of the petitioner under V.R.S. under Annexure-7 contrary to Clause 6.1, was not justified. Therefore, the same is quashed. 17. As per Clause 6.5 even if there is pendency of any criminal proceeding or disciplinary proceeding against the petitioner for recovery of specified amount, the same amount shall be withheld from the amount of ex-gratia payment under the VRS and only in the eventuality of the final exoneration, the same will be released in his favour. Admittedly by the time the petitioner submitted his application for retirement under V.R.S. neither any criminal proceeding nor any disciplinary proceeding was pending against him. Therefore, considering the application, recommendation was made by the Corporation to P.E. Department for its approval and in turn, the same was approved by P.E. Department and by computing the dues payable to the petitioner, the same was released in favour of the Corporation for onward payment to the petitioner. 18. After recalling the acceptance of V.R.S. under Annexure-8, and initiation of proceeding by framing a charge under Annexure-9 cannot be sustained as the same violate Clause 6.1 of the V.R.S. under Annexure-2. Further, initiation of disciplinary proceeding pursuant to Anneure-9 and consequential imposition of major penalty of compulsory retirement were meted out to the petitioner without following due procedure of law, more particularly without complying with the principles of natural justice and the 1988 Rules. 19. Further, initiation of disciplinary proceeding pursuant to Anneure-9 and consequential imposition of major penalty of compulsory retirement were meted out to the petitioner without following due procedure of law, more particularly without complying with the principles of natural justice and the 1988 Rules. 19. As it appears, neither any opportunity had been given to the petitioner nor was any enquiry caused by appointing Enquiry Officer, or any material was supplied to the petitioner on the allegation of the charges levelled against him, thereby due to non-compliance with the principles of natural justice and 1988 Rules, the very initiation of disciplinary proceeding resulting in imposition of penalty of compulsory retirement cannot be sustained. Accordingly, the same is quashed. 20. In view of the aforesaid facts and circumstances, the petitioner is entitled to get his dues as per the V.R.S. which had been released by the P.E. Department in favour of the Corporation to be paid to the petitioner within a period of three months from the date of communication of the order with interest thereon at the Bank rate from the date the same was due to be paid to him. 21. Accordingly, the writ petition is allowed. No order to cost.