Allahabad High Court
Avinash Kumar Yadav vs Executive Director, I.T.I. Ltd., Naini ... on 8 September, 2000
Equivalent citations: 2000(4)AWC2937, [2000(87)FLR466], (2001)1UPLBEC162
JUDGMENT S.R. Singh, J.
1. Petitioner, who was employed on the post of Machinist under the respondents, responded to the Voluntary Retirement Scheme floated by the respondents by making application dated 29.11.1997, in which the voluntary retirement was sought to be made effective with prospective date, i.e., 31.12.1997 in terms of the date prescribed under the Scheme. However, before the voluntary retirement could take effect, the petitioner, it would transpire, made an application on 9.12.1997 seeking to withdraw his offer of voluntary retirement. This request of the petitioner was turned down by the respondents vide letter dated 29.12.1997 and by order impugned herein and in which is embodied the letter dated 30.12.1997, the petitioner was intimated that this application under Voluntary Retirement Scheme has received the seal of approval for his voluntary retirement with effect from 31.12.1997 and accordingly, he was relieved of his duties in the company with effect from the aforesaid date.
2. I have heard Sri Ganga Prasad, appearing for the petitioner and Sri P. K. Mukherji for the respondents. The main brunt of the contention canvassed by Sri Ganga Prasad is that since the petitioner had withdrawn the application seeking voluntary retirement before the effective date the respondents were not justified in accepting the application, which had already been withdrawn by the petitioner. Sri P. K. Mukherji appearing for the respondents. In opposition, urged that the petitioner had no right to withdraw his application as per para (11) of the I.T.I. Circular No. 1017/97 dated 3.11.1997, and that apart, the petitioner, urged the learned counsel, accepted the terminal benefits and thereby acquiesced to the order dated 29.12.1997 by which his request made vide application dated 9.12.1997 embodying request for cancellation of his option for voluntary retirement, was 'regretfully' not acceded to by the Management and hence, proceeds the submission of Sri Mukherji, the petitioner is estopped from canvassing the correctness of the impugned order.
For the petitioner, it has been submitted that the terminal benefits flowing from voluntary retirement scheme, i.e., compensation amount to the tune of Rs. 1.98,237 besides Rs. 2,873 towards encashment of un-avalled leave given vide cheques dated 11.3.1998 and 22.3.1998 respectively were accepted by the petitioner in direct financial straits stemming from the reasons that his services having come to an end with effect from 31.12.1997, he had no wherewithal to fall back upon to support himself and his family.
3. In Balram Gupta v. Union of India and others, 1987 (Suppl) SCC 228, it has been held by the Apex Court that notice of the voluntary retirement, has to be ranked in parity with a letter of resignation and it can be withdrawn at any time before retirement takes effect notwithstanding any rule providing for obtaining specific approval of the concerned authority as a condition precedent for withdrawal of notice.
The Apex Court has held that a certain amount of flexibility is required and if such flexibility does not jeopardise Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow withdrawal of the letter seeking voluntary retirement in the facts and circumstances of the case.
4. In Union of India v. Gopal Chandra Misra, AIR 1979 SC 604, which was a case of a High Court Judge withdrawing his resignation before the effective date, the Supreme Court held that the resignation can be withdrawn at anytime before it takes effect i.e., before it effects the termination of the tenure of the office/post or employment. The principle aforestated received its echo in Balram Gupta's case and was held to be applicable to a case of voluntary retirement under a scheme providing for voluntary retirement. In J. N. Srivastava v. Union of India and another, (1998) 9 SCC 559, the principle laid down in Balram Gupta's case received reinforcement and was followed holding that withdrawal of voluntary retirement before the intended date of retirement is permissible. In that case also, the voluntary retirement notice dated 3.10.1989 was to come into effect from 31.1.1990. Though the authorities accepted the proposal on 2.11.1989 but before the effective date i.e., 31.1.1990 could reach, the appellant therein wrote a letter to withdraw his voluntary retirement proposal. The said request for withdrawal of voluntary retirement proposal was not accepted by the employer vide communication dated 26.12.1989 and, therefore, the employee had to give up the charge of the post as per his memo relinquishing the charge. The employee, however, went to the Tribunal, but the Tribunal gave no relief to him holding that voluntary retirement had come into force on 31.1.1990 and the appellant therein had given up the charge of the post as per his memo relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice, the Supreme Court held as under :
"It is now well-settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed. before the date of retirement is reached, the employee has focus paenitentiae to withdraw the proposal for voluntary retirement ...................... it is to be noted that once the request for cancellation of voluntary retirement was rejected by the authority concerned on 26.12.1989 and when the retirement came into effect on 31.1.1990, the appellant had no choice, but to give up the charge of the post to avoid unnecessary complications."
The Supreme Court held that the reasoning of the Tribunal could not be 'sustained' and accordingly, the order of the Tribunal was set aside and the authorities were directed to treat the petitioner to have validly withdrawn his proposal for voluntary retirement with effect from 31.1.1990.
The appellant therein was held entitled to arrears of salary and other emoluments including increments and to get pensionary benefits refixed accordingly "subject to the adjustment of any pension amount and other retirement benefits already paid to the appellant in the meantime upto the date of his actual superannuation."
5. In Power Finance Corporation Ltd. v. Pramod Kumar Bhatt, JT 1997 (4) SC 300, it was held that "jura! relationship of employer and employee does not come to an end till employee is actually relieved." In Pukhraj Mantri v. U.P. Co-operative Spinning Mills Federation Ltd., (1992) I UPLBEC 664, the employee had given resignation to be effective from a prospective event but before such event could happen, he withdrew resignation. Relying upon the decision of the Supreme Court in Union of India v. Gopal Chandra Misra (supra) ; M/s. J. K. Cottons & Co. Ltd. v. State of U.P.. AIR 1990 SC 1808 ; and Punjab National Bank v. P. K. Mittal, AIR 1989 SC 1083, it was held by this Court that resignation tendered by the petitioner therein could not become legally effective before expiry of the notice of three months as visualised in bye-law No. 6 of the U.P. Textile Co-operation General Service Condition Bye-laws and since the resignation was withdrawn before it could become effective both according to the bye-law and the letter seeking resignation and therefore, the petitioner therein was held to be deemed tin service of the respondents. In Shambhu Murari Sinha v. Project and Development India and another, JT 2000 (6) SC 359, option of voluntary retirement was exercised by the appellant therein vide letter dated 18.10.1995 and though it was accepted by the Management vide their letter dated 30.7.1997, the appellant was not relieved from service and he was rather allowed to continue in service till 26.9.1997, which for all practical purposes was held to be "effective date" as it was on this date that he was relieved from service and since in the meantime, the appellant therein had already withdrawn the offer of voluntary retirement vide letter dated 7.8.1997, the Apex Court held that the question was squarely covered by the decision in Balram Gupta ; J. N. Srivastava ; and Power Finance Corporation (supra) and accordingly. the, appeal of the employee was allowed by the Apex Court and he was held entitled to continue in service with all consequential benefits.
6. In my opinion, the question raised herein is squarely covered by the decision aforestated and the mere fact that the petitioner had accepted the terminal benefits in the shape of retirement compensation and leave encashment would not foreclose him from asserting his right. The order refusing to accede to the request of the petitioner withdrawing his option for voluntary retirement contains no reasons and is, therefore, unsustainable.
7. As a result of foregoing discussion, the petition succeeds and is allowed. The Impugned orders are quashed. The respondents are directed to re-situate the petitioner in his job attended with all consequential benefits subject, of course, to the condition that the amount already received by the petitioner as terminal benefits i.e..
retirement compensation and leave encashment will be credited to the arrears which may be admissible to the petitioner and if it still falls short, the same shall be liable to be sub ducted from the future salary of the petitioner.