Madhya Pradesh High Court
Pradeep Soni And Ors. vs M.P. Road Transport Corporation And ... on 20 July, 2007
Equivalent citations: 2007(3)MPHT579
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Regard being had to the homogeneity and similitude of the question of law involved in these writ appeals, they are delineated analogously and disposed of by this singular order.
2. The appellants invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India assailed the sustainability of the Clause IV(iii) of the Voluntary Retirement Scheme, 2005 floated by the M.P. State Road Corporation (for short 'the Corporation'). The said clause lays a postulate that once an employee gives the option under the Scheme for voluntary retirement the same cannot be withdrawn. It was contended before the learned Single Judge that the employees had the right to withdraw their option before the expiration of the validity period of the Scheme and if any acceptance had been done by the Corporation after such withdrawal, the same deserved to pave the path of extinction being impermissible and unacceptable in law. Before the learned Single Judge decisions rendered in the cases of Bank of India and others v. O.P. Swarankar etc , S.P. Jauhari v. M.P. Laghu Udyog Nigam Maryadit, Bhopal 2004 (2) M.P.H.T. 533, Jagannath Prasad v. M.P. State Electricity Board and Ors. 2003 (2) M.P.H.T. 7 (NOC) and Hindustan Copper Ltd. and Anr. v. Banshi Lal and Ors. 2006 AIR SCW 55, were pressed into service.
3. The Corporation contended before the learned Single Judge that in Hindustan Copper Ltd. (supra), the decision rendered in the case of State Bank of Patiala v. Romesh Chander Kanoji and Ors. , was not considered which was a judgment by the Larger Bench and, therefore, the same could not be treated as a precedent under Article 141 of the Constitution of India.
4. Learned Single Judge considering the rivalised submissions raised at the Bar took note of the fact that the Scheme was open from 1-7-2005 till 1-8-2005 and the option once exercised could not be withdrawn. He also took note of the fact that in the case of Romesh Chander Kanoji (supra), Their Lordships have held that the said clause was incorporated for an object sought to be achieved and if the applications were submitted by the employees after closure of the date it would have adverse effect because the Management was required to take a decision within a period of two months under the Scheme and further the Scheme was a funded one. Learned Single Judge placing reliance on the decisions rendered in the case of Amit Das v. State of Bihar and State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr. , expressed the opinion as under:
23. The submissions so made on the basis of the judgment so passed and cited as aforesaid by the learned Counsel for the MPSRTC also deserves to be accepted. It may be seen that in a subsequent judgment Hindustan Copper Ltd. and Anr. v. Banshi Lal and Ors. 2006 AIR SCW 55 (supra), the earlier judgment passed by the Full Bench in State Bank of Patiala v. Romesh Chander Kanoji and Ors. (supra) was not at all considered though in State Bank of Patiala v. Romesh Chander Kanoji and Ors. (supra), as discussed above, the Full Bench of the Apex Court has considered the question in detail and also distinguish the ratio of Bank of India and Ors. v. O.P. Swarankar etc. (supra).
5. After so stating the learned Single Judge has given reasonings why Their Lordships in Hindustan Copper Ltd. (supra), did not consider the judgment passed in Romesh Chander Kanoji (supra). Thereafter the learned Single Judge, as is noticeable, has expressed the opinion that as the employees had not withdrawn their option prior to 1-8-2005 during the validity period of the Scheme itself and withdrew the same after the validity period was over the Corporation rightly acted and accepted the request for the voluntary retirement submitted by the employees. Be it placed on record before the learned Single Judge it was also contended that the request for voluntary retirement was obtained by the employees by using coersive methods. Learned Single Judge did not accept the said stance as there were no specific allegations and pleadings in that regard were also vague. Being of this view the learned Single Judge dismissed some of the writ petitions and in certain cases held that as factual controversy was involved it was open to the writ petitioner(s) to take recourse to alternative remedy under the industrial law.
6. We have heard learned Counsel for the appellants and Mr. Deepak Awasthy, learned Government Advocate for the State and Mr. Shobit Aditya for the respondent-Corporation.
7. Before we advert to the factual scenario which would put the controversy to rest we would like to clarify the legal position.
8. In O.P. Swarankar (supra) a three Judge Bench was considering the Employees Voluntary Retirement Scheme, 2000, which was adopted by the State Bank of India but in certain respects it was not similar with the schemes of other nationalised banks. Their Lordships adverted to the general conditions of the Scheme. Clause 10.5 of State Bank of India Voluntary Retirement Scheme, 2000 (for short 'SBIVRS') stipulated that it would not be open to the employees to withdraw the request made for voluntary retirement under the scheme after having exercised such option. Their Lordships took note of the decision rendered by the Punjab and Haryana High Court, which had held that even if the scheme is validly framed it would be open to the employees to withdraw the option before it has been accepted and effectively enforced. Their Lordships took note of the decision rendered by the Bombay High Court and other High Courts which had held that Clause 10.5 of the scheme or the schemes framed by other banks were not operative as the employees had an indefeasible right to withdraw their offer before the same was accepted. Their Lordships in Paragraph 113 stated as under:
113. The submission of the 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 employees concerned 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 acceptance thereof by the employer. We, therefore, are of the opinion that the decisions of this Court, as referred to hereinbefore, shall apply to the facts of the present case also.
9. In Romesh Chander Kanoji (supra), a three-Judge Bench of the Apex Court was dealing with the issue concerning determination of the scope of the judgment rendered in the case of O.P. Swarankar (supra). In the said case State Bank of Patiala, a subsidiary of the State Bank of India issued a circular publishing its Voluntary Retirement Scheme, known as SBPVRS. The scheme was to open on 15-2-2001 and to be closed on 1-3-2001. Their Lordships dealt with the Clause 9(i) of the Scheme which stipulated that an application once made cannot be withdrawn and came to hold that the scheme in question was basically funded scheme and the same would be treated as irrevocable. Their Lordships came to hold that time was given to every employee to opt for voluntary retirement and similarly time was given to the management to work out the scheme. Their Lordships referred to Clauses (5), (8) and (9) and eventually came to hold that Clause (5) of the Scheme gave locus poenitentiae to the employee to withdraw by 1-3-2001 after which the mode of acceptance contemplated by Clause (8) of the scheme would apply and the bank would proceed to vet the applications. Their Lordships further expressed that reading of Clauses (5), (8) and (9)(i) would make it clear that the employees were precluded to withdraw after closure of the scheme, i.e., after 1-3-2001. Be it placed on record that the appeals were disposed of in terms of O.P. Swarankar (supra).
10. In Hindustm Copper Ltd. (supra), it has been held as under:
8. The contention raised on behalf of the appellant herein that in view of the stipulation contained in the option from to be filled up by the employees that the option once exercised cannot be withdrawn stands concluded by a three Judge Bench judgment of this Court in Bank of India and Ors. etc. v. O.P. Swarankar and Ors. etc. , wherein it was held that the scheme being contractual in nature, the provisions of the Indian Contract Act, 1872 would apply and, thus, an offer made by an employee could be withdrawn by him before it was accepted....
11. In Punjab and Sind Bank and Ors. v. Mohinder Pal Singh and Ors. 2006 (1) SC-SLR 28, a three Judge Bench of the Apex Court considered the decision rendered in the case of O.P. Swarankar (supra) and followed the principles laid down therein.
12. Learned Single Judge, as is manifest, has expressed the opinion that Hindustan Copper Limited (supra), did not consider the earlier decision rendered in the case of Romesh Chander Kanoji (supra) and in Romesh Chander Kanoji (supra), the decision rendered in the case of O.P. Swarankar (supra) was distinguished. In Romesh Chander Kanoji (supra), Their Lordships in Paragraph 11 have stated as follows:
11. Accordingly, the appeals are allowed in terms of the decision of this Court in Bank of India v. O.P. Swarankar (supra), and the impugned judgment of the High Court is set aside with no order as to costs.
13. In view of the aforesaid, the conclusion arrived at by the learned Single Judge on this score is not sustainable.
14. From the aforesaid enunciation of law there is no scintilla of doubt that an offer made by an employee ipso facto would not amount to resignation in praesenti and the offer can be withdrawn during the validity period. Learned Single Judge, as is perceivable, has dismissed some of the writ petitions and required some of the writ petitioners to seek redressal under the industrial law as the scheme was valid upto 1-8-2005. At this juncture, it is appropriate to mention that the conclusion arrived at by the learned Single Judge in this regard cannot be found fault with as the scheme in question, at the time of delivery of judgment, was valid upto to 1-8-2005. Presently, the scheme is valid upto 31-7-2007. The said fact is not disputed by Mr. Shobit Aditya, learned Counsel for the Corporation. As the validity period of the Scheme has been extended the said validity would relate back to the date of inception of the Scheme and it cannot be said that jural relationship between the employees and the employer has come to an end. Therefore, the employees were entitled in law to withdraw their option for voluntary retirement within the validity period and as the validity period has been extended and they have withdrawn their option they should be deemed to be in service. Be it noted that none of the appellants has accepted any kind of benefit under the voluntary retirement scheme. Some of them are continuing in service. The employees who are continuing in service should be allowed to continue till the jural relationship between the employees and employer comes to an end as per law. The appellants who are not in service should be reinstated in service and they shall reap all the consequential benefits.
15. In the result, the orders passed by the learned Single Judge in all cases are set aside and as a sequitur the writ appeals are allowed on the terms stated hereinabove. There shall be no order as to costs.