IN THE HIGH COURT OF DELHI AT NEW DELHI
WRIT PETITION(C) NO.12843/2009
Reserved on: 12.01.2011
Date of Decision : March 28, 2011
MRS. ANIL NANDWANI ..... Petitioner
Through Mr. R.K.Saini, Advocate
versus
FOOD CORPORATION OF INDIA & ORS. ..Respondents
Through Ms. Neelam Singh & Ms. Avni Singh,
Advocates.
AND
WRIT PETITION(C) NO.12826/2009
NEELAM MADAN ..... Petitioner
Through Mr. R.K.Saini, Advocate
versus
FOOD CORPORATION OF INDIA & ORS. ..Respondents
Through Ms. Neelam Singh & Ms. Avni Singh,
Advocates.
CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 1 of 13
SUDERSHAN KUMAR MISRA, J.
1. The common question that arises in these two petitions
is whether it was open to the petitioners to withdraw their offer of
voluntary retirement in terms of which, their retirement would come
into effect only after three months, and not before; because,
instead of accepting the offer on the terms proposed by them, the
respondent had purported to accept it with effect from an earlier
date. Alternatively, it is contended that in any case, a later circular
of the respondent enabled them to seek its withdrawal and the
respondent was bound to accede to their request in terms thereof.
2. Mr. Saini, who appears for the petitioners in both the
writ petitions, submits that the relevant facts of both are
substantially the same. He therefore, addressed arguments with
reference to the relevant facts of Mrs. Anil Nandwani‟s matter. The
only difference is that while Mrs. Anil Nandwani applied for
voluntary retirement on 19th July, 2004 praying that she be relieved
from the service after three months on 19 th October, 2004 and her
request for voluntary retirement was accepted by the respondent on
12th August, 2004, Mrs. Neelam Madan applied for voluntary
retirement on 13th July, 2004 praying that she be relieved from
service after three months on 13th October, 2004 and her request
for voluntary retirement was accepted by the respondent on 13 th
August, 2004. Since nothing turns on the difference between the
two set of dates, for convenience, the relevant dates and other facts
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 2 of 13
of Mrs. Anil Nandwani‟s matter, to which counsel has also referred
during his course of argument, have been examined in this
judgment.
3. The brief facts of the case are that the petitioner, Mrs.
Anil Nandwani, (the petitioner for short), was working as an
Assistant Manager (Gen.) with the respondent. On 29th June, 2004,
the respondent issued a circular introducing a Voluntary Retirement
Scheme for its employees. That scheme was to remain open for a
period of three months from the date it was floated, and interested
employees could seek voluntary retirement within this period.
Under the Scheme, applicants were required to give a three month
notice to the respondent for considering their application, and the
respondent was obliged to take a decision on that application,
within that period. The petitioner applied for voluntary retirement
on 19th July, 2004 praying that she be relieved from service only
after three months of applying i.e. with effect from 19th October,
2004. According to the petitioner, notwithstanding the fact that the
Scheme itself permitted the respondent to accept the offer with
immediate effect; the offer actually made by her precluded the
respondent from accepting her offer with effect from any earlier
date.
4. Pursuant to her aforesaid request for voluntary
retirement, the respondent issued an order, dated 12th August,
2004 relieving the petitioner, with effect from 31 st August, 2004.
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 3 of 13
Thereafter on 24th August, 2004, the petitioner requested the
respondent to release her final payment in terms of the Scheme.
This was duly received by her without protest.
5. After this, the petitioner sent a letter, dated 26th August
2004 to the respondent withdrawing her request for voluntary
retirement. Nevertheless, the petitioner was relieved, with effect
from 31st August 2004, on the ground that, in terms of paragraph
VIII (d), it is not open to any employee to withdraw such a request.
The said paragraph reads as follows:
“VIII. PROCEDURE
(d) Once an employee submits his application
for voluntary retirement under this scheme to the
competent authority, it shall be treated as final
and it is not open to the employees to withdraw
the same. The competent authority shall take
decision to accept or reject the request for VRS
within the notice period (3 months) and
communicate the same to the official concerned.”
6. After the petitioner was relieved, another circular was
issued by the respondent, on 22nd September, 2004 stating that,
though the scheme does not permit withdrawal of the application,
but the discretion would always rest with the competent authority to
accept or reject such an application and therefore, all authorities
were advised to decide the applications for withdrawal of voluntary
retirement requests on a case to case basis.
7. Counsel for the petitioner submits that, in effect, the
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 4 of 13
aforesaid order of 12th August, 2004 of the respondent does not
amount to an acceptance of the petitioner‟s application for the
reason that under the petitioner‟s offer, the respondent could retire
her only on 19th October, 2004 and not before. Consequently, the
decision of 12.8.2004 of the respondent to relieve her from 31 st
August, 2004 could only amount to a „counter offer‟ and nothing
more. If the petitioner had allowed that day of 31 st August, 2004 to
pass without any protest, it would amount to the petitioner
accepting that counter offer by her conduct. However, in this case,
the petitioner rejected that offer and decided to withdraw her
application through her letter dated 26th August, 2004.
8. Counsel for the petitioner also relies on the judgment of
the Punjab and Haryana High Court in Gurcharan Singh v. FCI &
Anr., WP (C) No. 1598/2005, in which, according to him, the Court
has examined the same factual situation and also the same scheme
floated by the respondent. In the aforesaid case, the Court held that
in withdrawing his application for voluntary retirement within three
months, the petitioner was merely exercising a right conferred
under the scheme itself. The writ petition was allowed and the
petitioner was reinstated.
9. Counsel for the respondent has drawn my attention to
paragraph (IV) (2) of the relevant Scheme with the sub-heading
Eligibility. The said paragraph reads as follows:
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 5 of 13
“IV. ELIGIBILITY:
2. A regular/permanent employee may seek
Voluntary Retirement Scheme by giving three
months notice in writing to the competent
authority within the prescribed time limit.
However, the competent authority may make the
payment of notice period of three months or for
the remaining period of notice period and may
accept the request for voluntary retirement from
any date before the date of expiry of notice
period.”
Counsel submits that, admittedly, under the Scheme,
the respondent was empowered to bring the voluntary retirement
into effect from any date after the submission of an application for
voluntary retirement by an employee, provided that the pay for the
remaining notice period is tendered to the employee concerned. In
this case, whilst the petitioner applied on 19 th July, 2004 seeking
voluntary retirement after three months on 19 th October 2004, in
terms of the aforesaid paragraph, the authority had accepted the
same on 12th August, 2004 and relieved her with effect from 31 st
August, 2004. This acceptance was duly communicated to the
petitioner and she was tendered the remaining pay for the notice
period.
10. Counsel for the respondent further states that, in fact,
after receiving the communication of 12 th August, 2004, the
petitioner sent a letter to the respondent, dated 24 th August, 2004,
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 6 of 13
stating that since voluntary retirement has been granted with effect
from 31st August, 2004 under the Scheme, the final payment, in
terms of the said Scheme, be made to her. Pursuant to this, the
entire payment which was due was, in fact, made to the petitioner.
Significantly, in her aforesaid letter of 24.8.2004, the petitioner
does not raise any protest with regard to the decision of the
respondent to accept her request for voluntary retirement.
11. Counsel for the petitioner states that the petitioner had
been constantly sending letters, dated 10 th January, 2005, 7th
February, 2006, 6th June, 2006, 31st January, 2007, 3rd February,
2007, 9th April, 2007, 4th July, 2007, 18th September, 2007 etc. to
the respondent requesting the withdrawal of her voluntary
retirement application. However, on 3rd April, 2007, the petitioner
received a communication from the respondent that her
representations have been examined; and since the option of VRS
was given by the employee at her own will, which has already been
accepted, and all the consequential retirement dues and benefits
stands paid, her application for reinstatement in service has been
rejected.
12. Counsel for the respondent relies on a decision of the
Supreme Court in Vice Chairman and Managing Director
A.P.S.I.D.C. Ltd. and Anr. vs. R. Varaprasad and Ors. AIR 2003
SC 4050, paragraph 18 which reads as under:
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 7 of 13
“18. ………It is fairly settled now that the
voluntary retirement once accepted in terms of
the Scheme or rules, as the case may be, cannot
be withdrawn. In these appeals from the facts it is
clear that the applications of the respondents
opting for voluntary retirement under the Scheme
were accepted and even the acceptance was
communicated to them. Thereafter, they filed the
writ petitions. Hence the High Court was no right
in allowing the writ petitions holding that they
applied for withdrawal before the effective date
considering the date of relieving the employees as
the effective date.”
13. He also relies on a decision of the Supreme Court in
Food Corporation of India and Ors. vs. Ramesh Kumar (2007)
8 SCC 141 where the same scheme has been examined and it has
been held in paragraph 6 which reads as under:
“6. ………Now adverting to the present scheme of
the Food Corporation, para 8 clearly stipulates
that the incumbent has no right to revoke the
same and the Management will decide the same
within three months. That means the Management
still has three months’ time to consider and decide
whether to act upon the offer given by the
incumbent or not. But if the incumbent revokes
his offer before the Corporation accepts it then in
that case, the revocation of the offer is complete
and the Corporation cannot act upon that offer. In
the present Clause there is one more additional
factor which is that the Management has to take a
decision within three months. Therefore, once the
revocation is made by the incumbent before three
months then in that case the Corporation cannot
act upon the offer of voluntary retirement unless
it is accepted prior to its withdrawal. ”
14. In this case, the application for voluntary retirement
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 8 of 13
was accepted by the respondent on 12th August, 2004 with effect
from 31st August, 2004. The petitioner sought the withdrawal of
her application for voluntary retirement only thereafter on 26 th
August, 2004. She was also relieved from duty on 31 st August,
2004. Not only that, after she received the communication from the
respondent dated 12th August, 2004, accepting her offer of
voluntary retirement, she wrote another letter to the respondent on
24th August, 2004 stating that since her offer of voluntary
retirement has been granted with effect from 31 st August, 2004
under the Scheme, the final payment in terms of the Scheme be
made to her.
15. To my mind, the subsequent circular of 22 nd September,
2004 of the respondent merely states that the respondent may
apply its mind to the question of accepting or rejecting any request
for withdrawal of the application for voluntary retirement made by
an employee on a case to case basis, and nothing more. This did
not oblige the respondent to carry out this exercise after the
petitioner‟s application seeking voluntary retirement had already
been accepted. Also, by applying for voluntary retirement, an
applicant is approbating the Scheme as framed, and on its
acceptance, the transaction is complete. The matter is over and
nothing remains on that aspect of the matter between the applicant
and his employer. If we were to interpret the circular of 22nd
September, 2004, to mean that the respondent was obliged to
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 9 of 13
apply its mind to the question of acceptance or rejection of the offer
of voluntary retirement made by employees in terms of the
Scheme, even after their offer had already been accepted merely
because, after its acceptance, somebody makes an application to
withdraw it, as is being canvassed by the petitioner, it would bring
into question every acceptance of voluntary retirement under the
Scheme by the respondent before 22nd September, 2004. Inter
alia, for that reason also, I am not inclined to accept that
proposition.
16. In Gurcharan Singh’s case (supra) cited by the
petitioner which related to the same respondent and the same
Scheme and circulars, what is significant is that Mr. Gurcharan
Singh applied for voluntary retirement on 28th September, 2004 i.e.
after the circular of the respondent dated 22 nd September, 2004,
permitting the competent authority to also examine the requests for
withdrawal of the application for voluntary retirement on a case by
case basis, was issued. Furthermore, in that case, the court
proceeded on the basis that Mr. Gurcharan Singh‟s offer of
voluntary retirement had not been accepted before he applied for
withdrawing the same. Hence, the same has no application to the
facts of the instant case where the offer was not only accepted, the
same was duly communicated to the petitioner and accepted by
her; and the petitioner in turn also requested the respondents on
28th August, 2004 to disburse all her dues in terms thereof. This
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 10 of 13
was also done. Admittedly, till this stage, the petitioner had no
grievance.
17. To set all doubts at rest, even in paragraph 6 of the
decision of the Supreme Court in Food Corporation of India and
Ors. vs. Ramesh Kumar (supra) it has been held that the
Corporation cannot act upon the offer of voluntary retirement in
case the employee revokes his offer within the notice period,
provided the corporation had not already accepted it prior to its
withdrawal. In this case, indisputably, the acceptance by the
respondent took place prior to the withdrawal by the petitioner.
18. What emerges is this; the Scheme envisaged an
application for voluntary retirement giving three month notice;
under it, the respondent had the option of accepting the offer with
effect from the date the three month period expired, or even at an
earlier date, provided the appropriate payment was tendered to the
petitioner for the remaining notice period. It did not vest any right
with the petitioner to vary the terms of the Scheme by setting down
new or different terms. The petitioner‟s action in specifying that
she should be relieved from service only after the three months‟
notice period was complete, meaning thereby, that the respondent
was precluded from accepting the same at any time before this,
amounted to an attempt to vary the terms of the Scheme.
Obviously, the respondents did not agree to this variation and
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 11 of 13
accepted her offer from an earlier date as permitted in the original
Scheme. Even if it is assumed for a moment that the acceptance by
the respondent was not in terms of the offer made by the petitioner,
even then, her conduct thereafter precludes the petitioner from
claiming that it does not bind her or that no binding contract came
into being. This is because after she received that communication
from the respondent, purporting to accept her offer of voluntary
retirement from a date which was different from the one specified
by her, she applied for, and received, all her dues in terms of the
same communication of the respondent. By accepting all her dues
without protest, the petitioner has clearly approbated the actions of
the respondent and is now estopped from contending otherwise. To
put it differently, if the offer by the petitioner that her voluntary
resignation be accepted only from the date on which the three
months‟ notice period expires, and not before, amounted to a fresh
offer different from the terms of the Scheme, the response by the
respondents retiring her from an earlier date and tendering
payment for the remaining period was again a counter offer
reiterating the original terms of the voluntary requirement scheme.
The petitioner‟s response to this counter offer by the respondent by
asking for, and accepting the payment being tendered for the
remaining notice period from the respondents, without protest,
amounted to an acceptance of that counter offer by the petitioner
and she was bound by the same. For that reason also, she cannot
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 12 of 13
be permitted to resile from this position.
19. In the light of the above, both the writ petitions are
dismissed.
SUDERSHAN KUMAR MISRA, J.
MARCH 28, 2011
WP(C) No. 12843/2009 & WP(C) No.12826/2009 Page 13 of 13