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2014 DIGILAW 553 (ORI)

Nityananda Das v. OSRTC

2014-09-02

B.R.SARANGI

body2014
JUDGMENT B.R. Sarangi, J. 1. The petitioner, who was working as a Conductor in Orissa State Road Transport Corporation, Bhubaneswar (in short OSRTC) has filed this application challenging the order dated 18.05.2001 Annexure-5(A) rejecting his application under Voluntary Retirement Scheme on the ground that he got below 10 years of qualifying service and therefore, the same was not being acceptable. 2. The petitioner appointed as a Conductor on 13.08.1987, vide Annexure-1, having remained unauthorizedly absent w.e.f. 12.03.1996. A departmental proceeding was initiated against him for that on 17.01.1997 on the charge of misconduct. In view of the provisions contained under Regulation-110(3) of the OSRTC Employees (Classification, Recruitment and Condition of Service) Regulation, 1978, in short 1978 Regulation no employee, shall proceed on leave without obtaining permission to avail himself leave pending sanction of leave applied for by him from the immediate superior or competent authority, as the case may be. When the matter stood thus, the Government of Orissa in Department of Public Enterprises issued a Resolution on dated 06.06.1998 introducing a Model Voluntary Retirement Scheme for the employees of State Public Sector Undertakings, which was accepted by the OSRTC in its Resolution dated 06.06.1998. As per such scheme, the petitioner submitted his application for Voluntary Retirement, which had been which had been forwarded to the General Manager (Administration), OSRTC vide Annexure-3(A). 3. In the disciplinary proceeding, the DTM (A), OSRTC, Cuttack issued office order dated 08.02.2000 suggesting that the period of unauthorized absence of the petitioner from duty from 13.3.1996 to 7.2.2000 might be treaded as leave without pay with imposition of ancillary punishments. Vide Annexure-5 dated 08.3.2001, the DTM (A), OSRTC, Cuttack issued an office order pursuant to the order of the CMD, OSRTC allowing 52 persons to retire from service as per the Voluntary Scheme w.e.f 8.3.2001 but in the case of the petitioner, it was stated that since he had not completed 10 years of qualifying service, his application for retirement under VRS was rejected. Hence this writ application. 4. Mr. Hence this writ application. 4. Mr. B. Dash, learned counsel for the petitioner, strenuously urged that rejection of the application of the petitioner filed under VRS vide Annexure-5(A), was an outcome of non-application of mind of the opposite party-authorities inasmuch as petitioner having rendered 10 years of qualifying service the order passed by the Disciplinary Authority dated 08.02.2000 treating the unauthorized leave availed by the petitioner i.e. from 13.03.1996 to 07.02.2000 as leave without pay was an error of record. If such period would have been counted as service period, the petitioner having got the minimum qualifying service of 10 years, his application under VRS should have been accepted by the authorities and he should have been extended the benefits admissible under the said scheme. 5. Mr. U.C. Mohanty, learned counsel for opposite party no.2, referring to the counter affidavit filed on behalf of the opposite party nos. 2 and 3 stated that the petitioner joined the service on 13.08.1987. He having remained on unauthorized for the period from 12.03.1996 to 07.2.2000 and from 09.02.2000 to 28.05.2002, he had not completed 10 years of service by the date of submission of application under VRS as per Clause 2.2 of Annexure-2. The application for retirement under VRS having been considered on 08.02.2000 followed by a disciplinary proceeding, the petitioner was awarded a punishment treating the period of his absence from 13.03.1996 till date i.e. 07.02.2000 as leave without pay, vide Annexure-7. The period of absence from 13.3.1996 to 07.2.2000 should not be taken into consideration for computation of 10 years of qualifying service. Therefore, rightly, the authorities rejected the application vide Annexure-5/A. 6. In order to substantiate his contention, Mr. Mohanty relied upon a judgment of this Court in Ganeswar Biswal vs. State of Odisha & Others, 2011 (Suppl.) 2 OLR 1075. 7. With the aforesaid factual backdrop of the case in hand, it is admitted that the petitioner had joined the service on 13.08.1987. He had remained unauthorizedly absent from 12.03.1996 to 07.02.2000 for which he faced a disciplinary proceeding and finally punishment was awarded treating the said period as leave without pay, vide Annexure-2. 7. With the aforesaid factual backdrop of the case in hand, it is admitted that the petitioner had joined the service on 13.08.1987. He had remained unauthorizedly absent from 12.03.1996 to 07.02.2000 for which he faced a disciplinary proceeding and finally punishment was awarded treating the said period as leave without pay, vide Annexure-2. The OSRTC while accepting the Resolution dated 06.06.1998 of the Government of Odisha in P.E Department communicated the same for information of employees inviting options from the eligible employees in which specific eligibility criteria had been mentioned in Clause-2.0 of Annexure-B/1 of Annexure-2 to the writ petition. 8. While going to the scheme, it appears that the meaning of Voluntary Retirement under Voluntary Retirement scheme came up for consideration before the Supreme Court in Reserve Bank of India & Another vs. Cecil Dennis Solomon and Another, (2004) 9 SCC 461 , wherein the expressions superannuation, voluntary retirement, compulsory retirement and resignation was taken into consideration. In paragraphs-10 & 11 of the said judgment it was held as follows:- “10. In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. In Punjab National Bank vs. P.K. Mittal, 1989 Supp (2) 175: AIR 1989 SC 1083 on interpretation of Regulation 20(2) of the Punjab National Bank Regulations, it was held that resignation would automatically take effect from the date specified in the notice as there was no provision for any acceptance or rejection of the resignation by the employer. In Punjab National Bank vs. P.K. Mittal, 1989 Supp (2) 175: AIR 1989 SC 1083 on interpretation of Regulation 20(2) of the Punjab National Bank Regulations, it was held that resignation would automatically take effect from the date specified in the notice as there was no provision for any acceptance or rejection of the resignation by the employer. In Union of India vs. Gopal Chandra Misra, (1978) 2 SCC 301 it was held in the case of a judge of the High Court having regard to Article 217 of the Constitution that he has a unilateral right or privilege to resign his office and his resignation becomes effective from the date which he, of his own volition, chooses. But where there is a provision empowering the employer not to accept the resignation, on certain circumstances e.g. pendency of disciplinary proceedings, the employer can exercise the power. 11. On the contrary, as noted by this Court in Dinesh Chandra Sangma vs. State of Assam, AIR 1978 SC 17 , while the Government reserves its right to compulsorily retire a government servant, even against his wish, there is a corresponding right of the government servant to voluntarily retire from service. Voluntary retirement is a condition of service created by statutory provision whereas resignation is an implied term of any employer-employee relationship.” 9. In view of the aforesaid law laid down by the Apex Court the inevitable conclusion is that the voluntary retirement and resignation involve voluntary acts on the part of an employee to leave service. One of the basic distinctions between the two is that in case of resignation, it can be tendered at any time but in the case of voluntary retirement, it can only be sought after rendering a prescribed period of qualifying service. Further, in the case of resignation a prior permission is not mandatory while in the case of voluntary retirement, permission of the employer concerned is a pre-requisite condition. Under Rule 16, an employee who seeks voluntary retirement has to give three months notice to enable the employer to complete the designated mode of acceptance. Resignation may be unilateral whereas voluntary retirement is bilateral. In the case of resignation the relationship of employer and employee terminates on acceptance of resignation. Whereas in the case of retirement, voluntary or superannuation, the relationship continues for the purposes of payment of retiral benefits. Resignation may be unilateral whereas voluntary retirement is bilateral. In the case of resignation the relationship of employer and employee terminates on acceptance of resignation. Whereas in the case of retirement, voluntary or superannuation, the relationship continues for the purposes of payment of retiral benefits. The above view is fortified by the Apex Court in Jaipal Singh vs. Sumitra Mahajan, (2004) 4 SCC 522 and in UCO Bank vs. Sanwar Mal, (2004) 4 SCC 412 . 10. In Ashok Kumar Sahoo vs. Union of India & Others, 2006 (6) SCC 704 : AIR (2006) SC 2876, the Apex Court 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, (iii) When voluntary retirement does not come into force unless permission to this effect is specifically granted by the Controlling Authority. 11. Such fact was considered by this Court in Chandrakanta Tripathy vs. State of Odisha & Others, W.P. (C) No. 9647 of 2008, dated on 24.7.2014. Keeping the above parameters in view and applying the same to the present context, it appears that in the model Voluntary Retirement Scheme, Annexure-B/1 to Annexure-2 of the writ petition, Clause 2.0 states about eligibility, Clause 3.0 states about procedure whereas Clause 4.0 states about voluntary retirement benefits, Clause 5.0 states about competent authority and Clause 6.0 states about miscellaneous. Clause 6.5 of the scheme states that the Scheme does not confer any right on an employee to have his request for voluntary retirement accepted by the Management. Clauses 2, 3, 4 and 6 of the Scheme is quoted below. “2.0 Eligibility. 2.1 It will be applicable for all regular Employees of the State Public Enterprises. 2.2 The employees must have been in regular service of the PSU continuously for not less than ten (10) years. 2.3 No charge(s)/charge sheet(s) for misconduct or misbehavior should be pending against the employee. 2.4 The employee due to retire on superannuation under normal course within a year of the date of the application for Voluntary Retirement shall not be covered under this Scheme. 2.3 No charge(s)/charge sheet(s) for misconduct or misbehavior should be pending against the employee. 2.4 The employee due to retire on superannuation under normal course within a year of the date of the application for Voluntary Retirement shall not be covered under this Scheme. 3.0 Procedure 3.1 The eligibility employee who desires to seek Voluntary Retirement may apply to the competent Authority through his/her Head of the Department in the prescribed format. 3.2 The decision of the competent Authority regarding the acceptance/ rejection of the VR application shall be communicated to the concerned employee within thirty (30) days of submission of the application. 4.0 Voluntary Retirement Benefits. 4.1 An employee who is allowed to retire voluntarily by the competent authority shall be entitled to the following benefits. Ex-gratia payment at the rate of twenty one (21) days salary (Pay, DA, IR) last drawn for every completed year of service. This compensation will be in addition to Gratuity and other statutory dues as admissible on the date of retirement. For computing completed year of service, any period exceeding three (3) months in a year will be counted as one (1) year. 6.0 Miscellaneous. 6.1 Application for Voluntary Retirement can not be withdrawn after the sanction order has been communicated to the concerned employee. 6.2 The vacancy caused by Voluntary Retirement Scheme shall stand abolished. 6.3 The clearance of all dues under the Scheme shall be paid to the employee within thirty (30) days of sanction of the Voluntary Retirement subject to Clearance of all dues payable to the Corporation by the employees concerned. 6.4 An employee availing Voluntary Retirement under this scheme shall not be eligible for re-appointment in any Government (Central or State), Semi-Government organizations or Central/State Public Sector Undertakings in future. 6.5 Not withstanding any of the aforesaid provisions the scheme does not confer any right on an employee to have his request for Voluntary Retirement accepted by the Management. 6.4 An employee availing Voluntary Retirement under this scheme shall not be eligible for re-appointment in any Government (Central or State), Semi-Government organizations or Central/State Public Sector Undertakings in future. 6.5 Not withstanding any of the aforesaid provisions the scheme does not confer any right on an employee to have his request for Voluntary Retirement accepted by the Management. The competent Authority has the right/discretion either to accept or reject the request of any employee for Voluntary Retirement, keeping in view the service record of the employee, the organizational requirement and any other relevant factors in this regard.” In view of the Clause 2.2, an employee must have been in regular service of the PSU continuously for not less than 10 years and as per Clause 2.3, no charge (s)/charge sheet (s) for misconduct or misbehavior should not be pending against the employee. The application of the petitioner for his retirement under VRS, was rejected on the ground that he had got below 10 years of qualifying service vide Annnexure-5/A. 12. In Hans Raj vs. State of Punjab, AIR 1985 SC 69 : (1985) 1 SCC 134 , while considering Rule 2(3) of Punjab Civil Service (Pre-mature Retirement) Rules, 1975, the apex Court held qualifying service under the rules means service qualifying for pension. In Union of India vs. S. Dharmalingam, AIR 1994 SC 592 : (1994) 1 SCC 179 , the apex Court held qualifying service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible. While considering Regulations 29(5), 29(1) and 2(w) of United Bank of India (Employers) Pension Regulation, 1995, the apex Court in United Bank of India vs. Pijush Kanti Nandy, (2009) 8 SCC 605 in paragraph 24 and 26 held as follows: “Thus the construction of qualifying service must ordinarily be kept confined to the service rendered while on duty. A person may be in service even otherwise although not rendering any duty. Those exigencies of situation are covered by the other types of cases which would come within the purview thereof. A person who is not in service cannot be said to be entitled to the benefit thereof. The term otherwise should be read ejusden genris. The term otherwise in the context of the Regulations should be construed so that it can become a meaningful one. A person who is not in service cannot be said to be entitled to the benefit thereof. The term otherwise should be read ejusden genris. The term otherwise in the context of the Regulations should be construed so that it can become a meaningful one. For the said purpose, the employee concerned was required to be in service. It is not possible to hold in absence of any express words that the eligibility criteria laid down in the Regulations for obtaining the benefit of pension i.e. the qualifying service should be construed in such a manner that a person even not in service would be deemed to be in service. The statute does not raise a legal fiction. A strict construction of the term qualifying service therefore, would not be appropriate. It, is however, trite that even a beneficial legislation should not be extended to such an extent whereby it would take into within its fold a situation which was not contemplated under the statute.” 13. By following a disciplinary proceeding the authorities had given continuity in service with eyes wide open by allowing the unauthorized absence period to be treated as leave without pay. Therefore, the period from 13.3.1996 to 07.02.2000 during which the petitioner remained unauthorizedly absent if treated as regular service, taking into account his initial date of joining in service from 13.08.1997 till 7.2.2000, petitioner should have been found to have completed 10 years of qualifying service. Therefore, the authority could not have denied the benefits of VRS scheme to the petitioner by accepting the VRS submitted by him in accordance with law. 14. The contention raised by Mr. U.C. Mohanty, learned counsel for opposite party no.2 that as per the provisions at Clause-5.0, the competent authority to sanction Voluntary Retirement was the Chairman-cum-Managing Director/Chairman, OSRTC and Clause-6.5 does not confer any right on an employee to have his request for Voluntary Retirement accepted by the Management. Therefore the discretion lay with the competent authority either to accept or reject the request keeping in view the service record of the employee concerned etc. To such contention of the opposite party, it can be safely concluded that the authority cannot exercise his discretion at his caprice and whims and by arbitrary exercise of power. Therefore the discretion lay with the competent authority either to accept or reject the request keeping in view the service record of the employee concerned etc. To such contention of the opposite party, it can be safely concluded that the authority cannot exercise his discretion at his caprice and whims and by arbitrary exercise of power. Such exercise of power must have got reasonable conclusion with a nexus to achieve the object to be sought, otherwise there will be no meaning in inviting applications from the employees seeking voluntary retirement. When the employees exercise their option for voluntary retirement, the same cannot be denied by the employer in an arbitrary and unreasonable manner. If such exercise of power could be there with the authority then it will amount to violation of Article 14 of Constitution of India. 15. As per the Clause-3 of the Voluntary Retirement Scheme, only eligible employees who seek Voluntary Retirement may apply to the competent Authority through their Heads of the Departments in the prescribed format. The competent authority can accept the application for voluntary retirement within 30 days of submission thereof. It is stated by the learned counsel for the opposite parties that if an employee submitted his application VRS, the discretion is only left to the employer to accept the same within a period of 30 days of such submission. If the same has not been accepted, no legal right for acceptance of the same can be exercised by the employee. 16. Much reliance has been placed in Ganeswar Biswal vs. State of Orissa and Others, 2011 (Supp.-II) OLR 1075, but the same judgment is not applicable in the present context in view of paragraphs 8 and 9 of the judgment which state as follows: “It is an admitted that in the present case that the offer has been communicated to the petitioner and he has already received all the financial benefits admissible under the V.R.S. Honble Supreme Court in the case of HEC Voluntary Retd. Emps. Welfare Soc. and Another vs. Heavy Engineering Corporation Ltd. and Others, AIR 2006 SC 1420 , has held thus:- “The voluntary retirement scheme speaks of a package. One either takes it or rejects it. Emps. Welfare Soc. and Another vs. Heavy Engineering Corporation Ltd. and Others, AIR 2006 SC 1420 , has held thus:- “The voluntary retirement scheme speaks of a package. One either takes it or rejects it. While offering to opt for the same, presumably the employee takes into consideration the further implications also.” Proceeding further, it has further been held by Hon’ble the Supreme Court that:- “It is not in dispute that the effect of such voluntary retirement scheme is cessation of jural relationship between the employer and the employee. Once an employee opts to retire voluntary, in terms of the contract he cannot raise a claim.” 9. In view of the settled law on the point, the offer of voluntary retirement by the petitioner having been accepted by the O.P.G.C. (opposite party) and the petitioner having received all the financial benefits under the V.R.S., this Court cannot go into the question as to whether the petitioner had any interest to take voluntary retirement or not. It is to be only seen whether the last paragraph of the notice vide Annexure-3 constitutes a coercion as contended by the petitioner.” In the above case the application for VRS submitted by the employee had been accepted and final benefits as admissible under VRS had been extended and after acceptance of the VRS benefits there was no question whether the petitioner had any interest for voluntary retirement or not. But in the case in hand, the question is whether the unauthorized absence could be taken into consideration while computation of 10 years of qualifying service for acceptance of VRS or not. If the authority by following due procedure treated the unauthorized absence period from 13.03.1996 to 07.02.2000 as leave without pay, that ipso facto amounts to giving continuity of service. If that period is taken into consideration, the petitioner had completed 10 years of qualifying service and therefore, the authority could not have rejected the voluntary retirement application on a flimsy ground that he has not completed 10 years of qualifying service by the time he submitted his application under VRS and could not have denied the benefit admissible to him in accordance with the scheme. 17. 17. In course of hearing, reliance has been placed on subsequent conduct of the petitioner stating that the petitioner again remained unauthorizedly absent from 09.02.2000 to 28.05.2002 for which he had been placed in another disciplinary proceeding and for that he was dismissed from service on 28.05.2002 vide Annexure-3 to the OJC No. 5997 of 2002. Stating so, Mr. U.C. Mohanty, learned counsel for opposite party no.2, contended that the authority rightly rejected the voluntary retirement application of the petitioner. Under the Voluntary Retirement Scheme, the subsequent conduct was also to be taken into consideration by the authority and the reasons for rejection of the Voluntary Retirement application are that the petitioner had not 10 years qualifying service. Constitution Bench of the Apex Court in Mohinder Singh Gill and Another vs. Chief Election Commissioner, New Delhi and Others, AIR 1978 SC 851 in paragraph-8 upon the judgment of Gordhandas Bhanji, AIR 1952 SC 160 has held as follows: “Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” 18. Therefore, any subsequent explanation by way of affidavit disentitling the petitioner with regard to acceptance of his application under VRS by reason of imposition of a punishment by the disciplinary authority cannot be taken into consideration, rather on the basis of the factum that the period of unauthorized absence from 13.03.1996 to 07.02.2000 having been treated as leave without pay, this should have been added to the period of his qualifying service accepting the date of joining the service as 01.08.1987. The order of rejection of petitioners application as per Annexure-5 is therefore, quashed and the opposite parties are directed to reconsider the application submitted by the petitioner for retirement under VRS taking into account the fact that he had got 10 years of qualifying service by the time he submitted his application computing the unauthorized period of absence from 13.03.1996 to 07.03.2000 giving continuity of service with effect from the date of joining, i.e. 01.08.1987. 19. Accordingly, the writ petition is allowed. No order as to cost.