JUDGMENT
A.K. Samantaray, J.
1. In this writ petition under Articles 226 and 227 of the Constitution of India the petitioner challenges the rejection of his representation for withdrawal of voluntary retirement application and has come with the prayer for quashing the said order of rejection (Annexure-4) and the order of his relief from service (Annexure-7).
2. The factual backdrop leading to the filing of this writ petition is that the petitioner was appointed as Accounts Officer under Orissa State Road Transport Corporation, Bhubaneswar (O.P. No.1) on 4.2.1986 and in course of time he was promoted to the post of Accounts Officer, Class-ll on 27.4.1993 and was again promoted to the post of Accounts Officer, Class-I with effect from 3.7.1998 and he also held the post of Financial Advisor and Chief Accounts Officer from 24.4.1996 to 18.9.1997 vide Government of Orissa, Commerce & Transport Department Notification No. RT-IV-Corpn.49/96-12467/T dated 26.8.1996. In course of time, the Government of Orissa, in the Department of Public Enterprises (O.P. No.4) in its Resolution No.3165 dated 21.9.2001 introduced a Model Voluntary Retirement Scheme (hereinafter referred to as ‘Scheme’) for employees of Public Sector Undertakings which includes O.P. No.1 Undertaking. Clause-2.2 of the said Scheme, inter alia, provides that no employee whose continuance is considered essential for Public Enterprises concerned shall be permitted to be covered under the Scheme. Clause 3.2 stipulates that the decision of the Competent Authority regarding acceptance/rejection of the voluntary retirement application shall be communicated to the employee within thirty days of the submission of the application. Clause 6.1 of the said Scheme envisages that an application for voluntary retirement cannot be withdrawn after its acceptance is communicated to the employee concerned.
3. Subsequently, O.P. No.4 amended Clauses 3.2 and 4.1 of the aforesaid Resolution dated 21.9.2001. The amended provision of Clause 3.2 further stipulates that in case of acceptance of the application, the employee concerned should be relieved from the organization forthwith. O.P. No.4 issued a further clarification on 27.6.2002 which stipulates that in case where a Departmental Proceeding is pending against an employee the voluntary retirement should not be offered to him and he shall not be ordinarily relieved unless the connected Departmental Proceeding is expected to be finalized within four months. It is stated in the writ petition that in view of Clause 2.2. of the Scheme the post of the petitioner could not be covered under the Scheme and it has further been added that O.P. No.1 in its Resolution dated 13.5. 1974 had resolved that the Accounts Officer whose function as the Drawing and Disbursing Officer of the Corporate office being a single post, it is absolutely essential for the smooth functioning of the O.P. No.1-Corporation.
4. The petitioner after going through the Scheme floated by O.P. No.1, in his representation dated 10.10.2001 applied to General Manager (Admn.), OSRTC, Bhubaneswar (O.P. No.2) requesting him to permit him to retire voluntarily from service of the Corporation vide Annexure-2. More than thirty days elapsed after he made his application/representation for voluntary retirement under the Scheme. The Competent Authority did not intimate anything to the petitioner either accepting or rejecting his voluntary retirement application as per the requirement of Clause 3.2. of the Scheme. Subsequently, the petitioner after making consultation with his family members and well-wishers came to a conclusion that retirement under the Scheme was not beneficial to him, rather, he needed a monthly income to maintain his family and apart from that he was left with sixteen years of service before attaining the age of superannuation to get his pension from Regional Provident Fund Commissioner, Bhubaneswar. After deciding not to take voluntary retirement under the Scheme the petitioner submitted a representation to O.P. No.1 on 20.12.2001 for withdrawal of the application submitted earlier, (Annexure-3). The petitioner has specifically stated that by the time he made application for withdrawal of the voluntary retirement offer, the opposite parties had not accepted the same and as such the petitioner had absolute right to withdraw his voluntary retirement offer before its acceptance was communicated to him in the light of the stipulation in Clause 6.1 of the Scheme. But despite the stipulation in Clause 6.1, the opposite parties rejected his representation for withdrawal of the application which was communicated to him by the Labour Officer of the Corporation (O.P.No.3) in its missive dated 7.3.2002 without assigning any reason (Annexure-4). Faced with such a situation the petitioner represented to O.P. No.1 again on 3.4.2002 making a prayer for consideration of withdrawal of his voluntary retirement application sympathetically. In the said application he indicated the duties and responsibilities of the Accounts Officer to be very very essential for smooth functioning of the Corporation and the function could not be discharged by any other person under the statute of the Corporation. The said representation 3.4.2002 has been annexed as Annexure-5. Annexure-5 was not heeded to and ultimately the O.P. No.1 vide letter No. 1974 dated 24.7.2002 intimated the concerned authorities to relieve the employee from service with immediate effect whose applications to retire under the Scheme had been approved by the Government and necessary consequential direction was also issued by O.P. No.1 by the said letter (Annexure-6). Consequent to the aforesaid direction of O.P. No.1 in his missive dated 24.7.2002, the O.P. No.2 vide office memo No.19817 dated 25.7.2002 allowed the petitioner to retire from service with effect from 25.7.2002 afternoon under the Scheme and accordingly the petitioner was relieved of his duties with effect from 25.7.2002.
5. It is specifically averred that though opposite parties accepted the voluntary retirement application of the petitioner after expiry of the period of stipulation in the Scheme the said post is still continuing which is evident from office order dated 19.7.2002 (Annexure-8) entrusting the duties of the Accounts Officer to one Sri B.B. Nayak who is being paid salary more than that the petitioner was receiving at the time of his continuance and this itself defeats the very object of the Scheme.He has also reiterated that keeping in view the provisions of Clause 3.2 read with Clause 6.1 of the Scheme an employee has got an indefeasible right to withdraw the voluntary retirement application before its acceptance is communicated to him. He has stated that in the instant case the opposite parties did not communicate anything to the petitioner within the stipulated period of thirty days either accepting or rejecting the petitioner’s offer for retirement and the petitioner also was allowed to continue in his service even after expiry of the stipulated period of thirty days. According to the petitioner he applied for withdrawal from voluntary retirement before its acceptance was communicated to him and, in view of the stipulation in the Scheme, the opposite parties could not exercise any right to refuse withdrawal of the voluntary retirement application. It is further stated that on the other hand the Scheme being an offer and in the absence of any prohibition for withdrawal of the application before its acceptance the petitioner had every right to withdraw the same in the spirit of Section 5 of the Contract Act. The petitioner has cited Clause 6.2. of the Scheme which envisages that the vacancies caused by the VRS shall stand abolished. But in the instant case, the said post of Accounts Officer is still subsisting and one B.B. Nayak is discharging the duties and responsibilities of Accounts Officer and this is indicative of the fact that to get rid of the petitioner without any intention of abolition of the post as the said post is very very essential for the smooth functioning of the Corporation, the petitioner’s application for withdrawal was rejected without assigning any reason. Finally it is averred that immediately after the petitioner represented for withdrawal of voluntary retirement application, a Departmental Proceeding was initiated against him and thereafter, again another Departmental Proceeding was initiated after he was relieved on retirement and this fact makes it clear that actions of the authorities are tainted with mala fide and intended to harass the petitioner.
6. A counter affidavit has been filed on behalf of opposite parties 1 to 3 wherein it is stated that the petitioner submitted the withdrawal application two months after the submission of the same for retirement under the Scheme and by that time his application for voluntary retirement was already accepted and as such the rejection order as per Annexure-4 does not suffer from any illegality. It is stated that since the petitioner submitted his application voluntarily as he was not interested to continue any further in the service, there was no obligation cast on the employer to refuse his application for voluntary retirement under the Scheme. It is further averred in the counter that the application of the petitioner was accepted within a period of nine days of tits submission and the petitioner being the head of the Accounts Section was communicated about such acceptance on 19.10.2001 and was directed to calculate the entitlement of the employees including his own entitlement and since this fact has been brought to the notice of the petitioner within nine days, no separate communication to him was warranted. It is further stated that Sri B.B. Nayak is not functioning as regular Accounts Officer but he is continuing on contract basis till the work is over. It has been reiterated that the application for voluntary retirement is an offer but in this particular case the application for withdrawal of voluntary retirement was filed by the petitioner after the acceptance of the application.
7. A rejoinder affidavit has been filed on behalf of the petitioner to the counter affidavit reiterating the same stand taken in the writ petition and an additional counter affidavit has been filed by opposite parties 1 to 3 almost repeating the same stand that before the application for withdrawal was filed by the petitioner the opposite parties had already accepted his application for voluntary retirement. It has further been stated in the additional counter affidavit that the petitioner has already received an amount of Rs.1,46,791/- towards statutory dues and arrear salaries amounting to Rs.9,627/-. Apart from that, his EPF dues amounting to Rs.72,243/- has already been deposited and his account has been finally settled. But since the petitioner is not coming to receive the dues the cheque in respect of the said amount has been sent to the Government of Orissa for revalidation. Lastly, it has been stated that there is no violation of any of the guidelines of the Scheme by the opposite parties in retiring the petitioner from services of the Corporation.
8. Admittedly, Government on 21.9.2001 floated the Model Voluntary Retirement Scheme and on 10.10.2001 the petitioner submitted his offer to be included in the scheme and take voluntary retirement from the services of the Corporation. The petitioner changed his mind and took a decision and on 20.12.2001 he submitted an application for withdrawal of option for voluntary retirement as there was no communication to him from the opposite parties within 30 days of his submission of application. On 7.3.2002 the O.P. No.2 rejected petitioner’s request for withdrawal of his application for voluntary retirement without assigning any reason. On 19.3.2002 the petitioner submitted representation giving all details therein and making a prayer to allow withdrawal of his voluntary retirement application, but no communication in that regard was received from the opposite parties. The petitioner was relieved from service with effect from 25.7.2002.
9. For better appreciation of the factual aspects involved, we here extract the relevant clauses under the Scheme.
Clause 3.2 – Decision of the competent authority regarding acceptance or rejection should be communicated to the employee concerned within 30 days of submission of the application. In case of acceptance, the employee concerned should be relieved from his service forthwith.
Clause 6.1 – Application for voluntary retirement scheme cannot be withdrawn after its acceptance is communicated to the employee concerned.
Clause 6.2- The vacancy caused by voluntary retirement shall stand abolished.
Clause 6.4- The voluntary retirement benefits under the scheme shall be paid to the employee within 60 days of acceptance of V.R.
Clause 2.2- No employee whose continuation is considered essential for the public enterprises shall be permitted to be covered under the scheme.
As we have already indicated, it is not in dispute that the petitioner submitted his application for withdrawal of the voluntary retirement offer on 20.12.2001 and by that date there was no communication to the petitioner by the opposite parties that his application for voluntary retirement had already been accepted. Even at the time of communicating, the order of rejection of his application for withdrawal of his offer for voluntary retirement vide Annexure-4, it was not communicated that his proposal for voluntary retirement had already been accepted. In this connection, there is a clear mention in the writ petition that in Annexure-4, the rejection order, no reason whatsoever has been assigned. Be that as it may, as per the stipulation in the Clause 3.2 of the scheme no communication had been made to the petitioner by the opposite parties regarding acceptance/rejection of his V.R. application within 30 days or even thereafter. As we find from the record, he was communicated with the order of his relief vide Annexure-7, the memo No.19817 dated 25.7.2002 which he received on 26.7.2002. It is an admitted position that the petitioner on 20.12.2001 submitted his application for withdrawal of his voluntary retirement proposal and he had again after rejection of his aforementioned application made representation for withdrawal of his offer for voluntary retirement. It is the stand of the opposite parties 1 to 3 in their counter affidavit that the application of the petitioner dated 10.10.2001 had already been accepted on 19.10.2001 and since by the date of acceptance no application for withdrawal was pending and the same was received, later on, it was rejected. A stand has been taken in the counter affidavit and it was also urged before us that inference can be drawn that the petitioner had knowledge of the acceptance of his voluntary retirement proposal on the basis of his application as he was working as Accounts Officer in the Account Section of the Corporate Office and the Account Section was communicated to calculate the entitlements of the employees including the petitioner himself, individual communication to the employee concerned was not necessary. He also went to the extent of arguing that this communication for calculation of the entitlement was sufficient compliance of clause 3.2 of the scheme which stipulates that the decision of the competent authority regarding acceptance or rejection should be communicated to the employee concerned within 30 days of the submission of the application. We fail to understand as to how such a proposition is being advanced on the face of specific stipulation in the aforesaid clause that the decision of the competent authority regarding acceptance or rejection should be communicated to the employee concerned. Learned Counsel for the opposite parties, however, had to concede that there was no individual communication made to the petitioner regarding the acceptance of his voluntary retirement offer within 30 days of his making application and he was individually intimated only 25.7.2002/26.7.2002 that he was to be relieved on 25.7.2002 on acceptance of his voluntary retirement proposal. There is no dispute over the fact that within the period from his filing of application for taking voluntary retirement on 10.10.2001 to 25.7.2002 the date of his relief, petitioner had made two representations to the opposite parties for withdrawal of his voluntary retirement application. It is also not in dispute that his first application dated 20.12.2001 was turned down without assigning any reason and the other application was not at all heeded to.
10. Learned Counsel for the petitioner urged with vehemence that now it is a settled legal position that unless the employee is relieved of the duty after acceptance of offer of V.R. or resignation, jural relationship of the employee and the employer does not come to an end. Learned Counsel for the opposite parties 1 to 3 submitted that since there was intimation regarding acceptance of voluntary retirement proposal to the Accounts Section of the Corporate Office, where the petitioner was working as Accounts Officer, the petitioner had sufficient knowledge about the acceptance of his offer and once the offer was accepted he could not have withdrawn it and the opposite parties as such rightly rejected his withdrawal petition.
11. We have perused the scheme and have extracted the relevant clauses and we do not find any condition that once an option for voluntary retirement is exercised by an employee and the made is accepted by the employer, the employee is not entitled to withdraw from voluntary retirement. Rather clause 6.1 stipulates that the application for VRS cannot be withdrawn after its acceptance is communicated to the employee concerned. We have already found that at no point of time the petitioner was communicated about the acceptance of his voluntary retirement offer, by the O.Ps. It is only on issuance of office memo at Annexure-7 dated 25.7.2002, the petitioner was intimated that he was allowed to retire from service with effect from 25.7.2002 under MVRS. It is now amply clear that prior to 25.7.2002 there was no communication to the petitioner that his voluntary retirement offer was already accepted by the authority. Even in the rejection order of his application for withdrawal it was not indicated that since his offer had already been accepted, the petition was rejected.
12. The short and only question before us to be decided now is what is the effective date in this case at hand, before which the applicant could have withdrawn his offer of voluntary retirement under the scheme.
13. Learned Counsel for the petitioner contended that in view of the law laid down by the Apex Court since 1978, the petitioner was within his right to withdraw his option for voluntary retirement even after its acceptance, but before the actual date of release from the employment. In support of his contention he placed before us the decisions of the Hon’ble Apex Court. In a Constitution Bench decision in Union of India v. Gopal Ch. Mishra, it has been held that the general principle is that in the absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resignor.
In the decision of Balaram Gupta v. Union of India, , the principle laid down in Gopal Ch. Mishra (supra) was summarized as follows;-
A complete and effective act of resigning office is one which severes the link of resignor with his office and terminates its tenure.
In Balaram Gupta’s case the appellant employee offered to voluntary retire from service with effect from 31 st March, 1981 and accordingly, sent a letter within the notice period. However,he changed his mind and sent a letter on 31.1.1981 seeking to withdraw his notice of voluntary retirement but the request was turned down by the concerned authority on the plea tha the withdrawal of notice could only be with the specific approval of the authority. The Hon’ble Apex Court held “that the dissolution of the contract of employment would be brought only on the date indicated i.e. 31.3.1981 and up to that date the appellant continued as Government employee. He is at liberty to withdraw his notice of voluntary retirement and for this purpose prior approval is not required”.
In the decision in J.N. Srivastava v. Union of India, AIR (1999) SC 5171, the Hon’ble Apex Court also observed and held in the same line which are as follows :
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 locus- Poenitentiaelo withdraw the proposal for voluntary retirement.
In the case of Nand Keshwar Prasad v. Indian Farmers Fertilisers Co-operative Ltd., and Ors., , the Court reiterated that it is open to the employee concerned to withdraw letter of resignation before the date indicated in the notice of voluntary retirement. It has been observed therein-
…it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provision, the retirement mentioned in the letter of the resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the concerned employee did not intend to retire from such earlier date.
In Power Finance Corporation Ltd., v. Pramod Kumar Bhatia, , the Court observed as follows:-
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 Srikantha S.M. v. Bharath Earth Movers Ltd., J.T. (2005) 12 S.C. 465 the Court held thus :-
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.
14. Coming to the case in hand and looking to the factual position and the law settled by the Hon’ble Apex Court we have absolutely no doubt that there was no communication to the petitioner about the acceptance of his voluntary retirement offer under the scheme as has been stipulated in clause 6.1 thereof. The petitioner made representation for withdrawal from the scheme after changing his mind and the same was rejected without assigning any reason whatsoever. Thereafter, he made a second representation which was not heeded to. He continued in the service of the opposite parties till 25.7.2002 when a communication regarding his retirement under voluntary retirement scheme was made over to him and he made over charge of his office on the said date. In this fact situation, the jural relationship between the petitioner and the opposite parties continued up to 25.7.2002 and it is not in dispute that he was paid salary and other allowances as a regular employee of the opposite parties up to that date. In view of the legal position settled by the Hon’ble Apex Court which we have dealt with extensively in the preceding paragraphs, the petitioner had every right to withdraw the application for voluntary retirement any time before the jural relationship between him and his employer got severed and the opposite parties could not have rejected his withdrawal application petition which we hold to be illegal.
15. We also cannot lose sight of the admitted fact that even after the relief of the petitioner from his post, one B.B. Nayak is functioning as the Accountant in the said post and this gives credence to petitioner’s claim that the post of Accountant in the Corporate Office is essential one and the same could not be abolished on acceptance of V.R. of the petitioner. The objective of the scheme and the stipulation in Clause 2.2. thereof has been frustrated by the opposite parties, who after giving voluntary retirement to the petitioner rejecting his withdrawal offer, appointed another person in his vacancy paying him more pay than the petitioner was getting.
16. 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 government 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.
17. For the reasons aforementioned, we allow the writ petition, quash Annexures-4 and 7 and mandate 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, if any, actually paid to the petitioner on account of his retirement under the MVRS from his arrear entitlements.
18. The writ petition is accordingly allowed. In the circumstances of the case, we make no order as to cost.
B.P. Das, J.
19. I agree.