1. This appeal has been filed along with an application under Section 5 of the Limitation Act. Grounds taken in the affidavit filed in support of the delay condonation application are sufficient. Accordingly, the delay in filing the appeal is condoned. Application stands disposed of. Office to register the appeal.
2. This is an appeal by the State authorities-appellants (hereinafter referred to as the appellants) against the order dated 26.5.2010, passed by a learned Single Judge whereby the petition filed by the respondent-petitioner (hereinafter referred to as the petitioner) has been allowed directing the reinstatement of the petitioner in service with continuity of service and other consequential benefits.
3. The petitioner was appointed as Sub-Inspector in Civil Police of the State on 1.6.1981 and was promoted as Inspector in the year 1996-97. On 20.5.2009, while the petitioner was working as Special Intelligence Officer (Vishesh Prakostha), Saharanpur, he made an application for voluntary retirement w.e.f. 31.8.2009 on the ground of his ill health. The Deputy Inspector General of Police (Investigation) vide order dated 24.6.2009 allowed the application for voluntary retirement of the petitioner w.e.f. 31.8.2009 and further directed that he would stand superannuated w.e.f. 31.8.2009.
4. On 27.8.2009, the petitioner moved an application for withdrawal of his voluntary retirement to the Deputy Inspector General of Police, Investigation Department, U.P., Lucknow and that was received in the night of 29.08.2009. In spite of said application for withdrawal of the voluntary retirement, no action was taken by the appellants for rescinding the order dated 24.6.2009 and the petitioner was relieved on 31.8.2009. It is this order against which the writ petition was preferred.
5. The learned Single Judge referred to various judgments on the issue of voluntary retirement and noted that application for withdrawal of voluntary retirement was received in the office of the appellants on 29.8.2009, i.e. prior to 31.8.2009, before the petitioner was relieved.
6. On behalf of the appellants, it is contended that though the petitioner had moved an application for withdrawal of his voluntary retirement on 27.8.2009, which was received by the authority concerned on 29.8.2009 at night, but by that time, his final pension, gratuity and leave encashment bills had been finalized and order for releasing the same was also passed in favour of the petitioner.
7. The learned Judge felt that as the petitioner had unblemished career and had applied for withdrawal of his application for voluntary retirement, the appellants ought not to have taken a rigid stand and insisted upon accepting his voluntary retirement application and, for that reason, set aside the order dated 24.6.2009 as also the communication dated 25.9.2009.
8. At the hearing of this appeal, on behalf of the appellants, learned Standing Counsel submits that the learned Judge did not take into consideration the relevant Rules being Fundamental Rules 56 (c). The relevant portion of Rule 56 (c) is reproduced below:-
"[(c) Notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of [forty five years] or after he has completed qualifying service for twenty years.
(d) The period of such notice shall be three months:
Provided that--
(i)any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice or, as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement;
(ii)it shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice:
Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted;
Provided also that the notice once given by a Government servant under Clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority."
9. Apart from that, he submits that though the petitioner had sought to withdraw his application for voluntary retirement, nonetheless, the amount forwarded by cheques, namely, leave encashment for Rs. 1,08,064/-, gratuity for Rs.4,16,044/- and provisional pension for Rs. 16,049/- had been received by the petitioner and encashed. The petitioner, therefore, cannot contend that the order relieving him was without authority of law. The learned Single Judge having failed to consider these aspects of the matter, misdirected himself in law and consequently, the impugned judgment is liable to be set aside.
10. On the other hand, on behalf of the petitioner, learned counsel submits that it was open to the appellants to have withdrawn the application for withdrawal of voluntary retirement before it had come into force. Apart from that, he submits that even if the proviso to Rule 56 (c) is taken into consideration, there was no reason for the appellants, not to have granted permission to withdraw the application seeking voluntary retirement and in that context placed reliance on a judgment of the Supreme Court in the case of Balram Gupta vs. Union of India and another 1987 (Supp) Supreme Court Cases, 228. Merely because the petitioner had accepted the aforesaid amounts, is of no consequence and though the cheques were deposited in the Bank, the amounts are still lying in the account of the petitioner and he is willing to return back the same.
11. At the hearing of this appeal, we had specifically asked the learned counsel for the petitioner whether he had received the amount under protest and/or while encashing the cheque, he had made a protest. Counsel fairly states that the amount were not received under protest though the cheques were deposited in the petitioner's account.
12. We have also noted the judgment in the case of Union of India and another vs. Wing Commander T. Parthasarathy, (2001) 1 Supreme Court Case 158, wherein the Supreme Court noted that resignation, which is to have effect from a future date, can be withdrawn at any time before that date. This judgment lays down a broad proposition and will have to be considered in the light of other judgments.
13. The first issue for our consideration would be whether the learned Single Judge was right in passing the impugned order without considering the second proviso of sub-clause (d) of Rule 56 of the Fundamental Rules. That provision, as reproduced above, would require that once the Government servant had sought voluntary retirement in terms of Clause (c), he could not withdraw the same except with the permission of the appointing authority. Secondly, assuming that the appointing authority did not apply its mind and have given various reasons for rejecting the application for withdrawal of the voluntary retirement, would that entitle the petitioner to the relief, as prayed for considering that the petitioner had encashed the amount of the terminal benefits and had also received his pension.
14. Considering the first question, it is no doubt true that a Government servant is entitled to apply for voluntary retirement, if he fulfills the criteria prescribed. Once a Government servant gives a notice to that effect, then the second proviso sets out that he cannot withdraw the same except with the permission of the appointing authority. Admittedly, in the facts of the case, no permission was sought from the appointing authority.
16. We may notice, therefore, from the facts as set out earlier, the application for voluntary retirement was made on 20.5.2009 seeking voluntary retirement with effect from 31.8.2009. The same was accepted on 24.6.2009 retiring the petitioner from service with effect from 31.8.2009, and the petitioner was informed that he would stand superannuated w.e.f. 31.8.2009. The petitioner moved an application for withdrawal of the voluntary retirement on 27.8.2009, which was received in the office of the Deputy Inspector General of Police (Investigation) only at the night of 29.8.2009. The appellant was due to superannuate on 31.8.2009, as per the earlier order. The petitioner's application also did not seek approval to withdraw the voluntary retirement. All that is set out, was that he was seeking to withdraw the application. Various reasons have been given as to why the application for withdrawal of the voluntary retirement was not considered. It is requested that appointing authority must disclose or give reasons as to why the application was not considered.
17. The Supreme Court in the case of Balram Gupta (supra) also considered a case of withdrawal of voluntary retirement given earlier where also a provision like the proviso, as referred hereinbelow, was subsisting. In that context, the Supreme Court was called upon to consider as to whether there was any valid reason for withholding the permission by the respondent. It appears from the facts of that case that the appellant before the Supreme Court requested the authorities that notice for resignation might be treated as cancelled and the same be treated as withdrawn and in that context the Supreme Court observed as under:-
"13. We hold, therefore, that there was no valid reason for withholding the permission by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in government service and induced the appellant to withdraw the notice. 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 appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circuitous ways "to ease out" uncomfortable employees. As a model employer the government must conduct itself with high probity and candour with its employees."
18. It was thus clear that if an application moved for withdrawal, the appointing authority cannot refuse it on the grounds which are extraneous for consideration of the application. The Court noted that the Government is a model employer and must conduct with high probity and candour with its employees.
19. Neither the reasons given in the application under Right to Information Act nor in the Counter Affidavit filed on behalf of the appellants can be considered though no record has been shown that the appointing authority applied his mind to consider the application for withdrawal of the voluntary retirement. In the application under the Right to Information Act, what was set out was that it was received late and in the counter affidavit before the learned Single Judge, it was set out that the papers for pension and other terminal benefits had already been prepared. The provision for withdrawal of the application for voluntary retirement is a statutory provision and consequently non-compliance, if there be, consequence must follow. In the instant case, the reasons given for not considering the application are totally extraneous. Therefore, what has to be considered is whether this can be said to be fatal. In our opinion, ordinarily that would be the legal effect. However, at the same time, the appointing authority must also have a reasonable opportunity to consider the application. In the instant case, the retirement was to be effected from 31.08.2009 and the application was received only in the night of 29.08.2009, which was a Saturday and 30th was a Sunday. The appointing authority, therefore, had no reasonable opportunity to apply his mind to the application for withdrawal. Insofar as the first question is concerned, ordinarily, an application for withdrawal of voluntary retirement ought to be accepted, unless there be germane reasons and secondly the appointing authority had reasonable time to consider the application.
20. Insofar as the second question is concerned, can a party, who has accepted terminal benefits subsequent to his application for voluntary retirement having been accepted and the person having been relieved from service, approach the Court contending that though he has accepted the terminal benefits, he is ready to return the same and consequently the order superannuating the employee and consequential order be set aside.
21. It is an accepted principle that once a party alters his position by accepting the terminal benefits including provisional pension, it would not be open to such a person to contend that though he had applied for withdrawal of the application for voluntary retirement and the same was rejected for extraneous reasons, yet merely because he had accepted the terminal benefits, thus, would not disentitle him for the relief which he had sought.
22. A party cannot approbate and reprobate is the normal jurisprudential principle, and more especially a person who is invoking the extraordinary jurisdiction of this Court. A petitioner's conduct should also be equitable in order to seek relief from this Court in the exercise of its extraordinary jurisdiction.
23. Our attention was invited to a judgment of this Court in the case of Jagdish Chandra Nigam v. M/s. Scooters India Ltd., Lucknow & Ors., [2001 (89) FLR 798], to the effect that a person who gives an application of voluntary retirement from a prospective date, can withdraw it before such prospective date and that merely because he has received the terminal benefits, would not disentitle him to withdraw his application for voluntary retirement. From the record of the said case, it appears that it was an Scheme floated by the Company and was contractual and not statutory. The matter, it appears, was taken in appeal by the Company to the Supreme Court which, by its order dated February 12, 2004 allowed the appeal filed by the Company relying on the judgment of the Supreme Court in Punjab National Bank v. Virender Kumar Goel & Ors., (2004) 2 SCC 193. It was a review application arising out from the main judgment being Bank of India & Ors. v. O.P. Swarnakar & Ors., (2003) 2 SCC 721. The Supreme Court in O.P. Swarnakar (supra), made a distinction between a contractual scheme and voluntary scheme. In that context, the law was considered. The Supreme Court, in the said case, Bank of India (supra), quoted from the Halsbury's Laws of England, and we may gainfully reproduce paragraphs 118 and 119 of the judgment, which read as under:-
"118. In Halsbury's Laws of England, 4th Edition, Vol.16 (Reissue) para 957 at page 844 it is stated:
"On the principle that a person may not approbate and reprobate a special species of estoppel has arisen. The principle that a person may not approbate and reprobate express two proposition:
(1) That the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile.
(2) That he will be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct, which he has first perused and with which his subsequent conduct is inconsistent."
119. In American Jurisprudence, 2nd Edition. Volume 28, 1966, Page 677-680 it is stated:
"Estoppel by the acceptance of benefits: Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions.
As a general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance.
This rule has to be applied to do equity and must nor be applied in such a manner as to violate the principles of right and good conscience."
24. The Court in paragraphs 114 and 115, had held that those who had accepted ex gratia payment or any other benefit under the scheme, could not have resiled therefrom and that the employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand. The appeal, therefore, preferred by the Nationalised Banks were dismissed but not insofar as the State Bank of India is concerned, where it was held that the scheme was statutory in character and the appeal preferred by the State Bank of India was allowed. In the review filed, the Supreme Court held that those who had withdrawn the money knowing that the money deposited in the account was part of the benefit of the scheme and that the request for VRS had been accepted, such employees would not be allowed to withdraw their resignation. A similar issue again came upon for consideration before the Supreme Court in New India Assurance Company Ltd. v. Raghuvir Singh Narang & Anr., (2010) 5 SCC 335. We may gainfully reproduce the following observations from the said judgement:-
"10. It is true that the principles of Contract Law relating to offer and acceptance enables the person making the offer to withdraw the offer any time before its acceptance; and that any subsequent acceptance of the offer by the offeree, after such withdrawal, will not result in a binding contract. Where the voluntary retirement is governed by a contractual scheme, as contrasted from a statutory scheme, the said principle of Contract will apply and consequently the letter of voluntary retirement will be considered as an offer by the employee and therefore any time before its acceptance, the employee could withdraw the offer. But the said general principle of Contract will be inapplicable where the voluntary retirement is under a statutory scheme which categorically bars' the employee, from withdrawing the option once exercised. The terms of the statutory scheme will prevail over the general principles of contract. This distinction has been recognized by a series of decisions of this Court..."
25. The Court also noted the judgment in Balram Gupta (supra) and observed that an employee, who gives notice of voluntary retirement to take effect prospectively from a subsequent date, is at liberty to withdraw the notice any time before it comes into effect. But this normal rule would not apply, where having regard to the statutory rules governing the matter, the employee cannot withdraw except with the approval of the concerned authority, but such approval cannot be the ipse dixit of the approving authority. He should act reasonably and rationally. He cannot keep the matter pending for unduly long time for dealing with applications of employees similarly situated. The judgment in Swarnakar (supra) was summarised thus:-
"22. The effect of the decision in Swarnakar can be summarized thus:
(i) If a contractual scheme provides that the voluntary retirement by exercise of option by the employee, will come into effect only on its acceptance by the, employer, it will not create any enforceable right in the employee to claims retirement. Any term in such a scheme that the employee shall not withdraw from the option once exercised, will be an agreement without consideration and therefore, invalid. Consequently, the employee can withdraw the offer (that is option exercised) before its acceptance. But if the contractual scheme gives the option to an employee to voluntarily retire in terms of the scheme and if there is no condition that it will be effective only on acceptance by the employer, the scheme gives an enforceable right to the employee to retire, by exercising his option. In such a situation, a provision in the contractual scheme that the employee will not be entitled to withdraw the option once made, will be valid and binding and consequently, an employee will not be entitled to withdraw from the option exercised.
(ii) Where the scheme is statutory in character, its terms will prevail over the general principles of contracts and the provision of the Contract Act. Further, there will be no question of any "consideration" for the condition in the Scheme that the employee will not withdraw from the option exercised. Subject to any challenge to the validity of the scheme itself, the terms of the statutory scheme will be binding on the employees concerned, and once the option is exercised by an employee to voluntary retire in terms of the Retirement Package contained in the Scheme, the employee will not be entitled to withdraw from the exercise of the option, if there is a bar against such withdrawal.
26. On behalf of the respondent-petitioner, learned counsel sought to contend that the judgment referred to above including the judgment in O.P. Swarnakar & Ors. (supra), Punjab National Bank (supra) and Virendra Kumar Goel & Ors. (supra) and some other judgments, namely, Punjab & Sindh Bank v. S. Ranveer Singh Bawa, (2004) 4 SCC 484; and Punjab & Sindh Bank v. Mahendra Pal Singh, (2005) 12 SCC 747, are the judgments rendered under the Voluntary Retirement Scheme and a Scheme of option for VRS stands on entirely different footing than an application seeking voluntary retirement under Fundamental Rule 56 (C) of the Fundamental Rules. To our mind, this distinction really cannot be applied considering the law laid down in O.P. Swarnakar (supra), wherein in the case of State Bank of India, the appeal was allowed considering that the scheme was statutory. In the instant case also, the provision for voluntary retirement is under Fundamental Rule 56 (C) which is a statutory provision and, therefore, though the Rule provides for withdrawal, yet at the same time permission is required to be sought from the appointing authority. In the instant case, we have found that the respondent herein (original petitioner) gave the letter of withdrawal on Saturday night, Sunday was the next day and he was due to be relieved on 31st August, 2009. Thus, the appointing authority would have no time to consider the case or to apply his mind. Secondly, we may also note that the principle of approbate and reprobate has not been held not to be applicable in respect of a statutory provision, though a distinction in the matter of withdrawal has been made between contractual scheme and a statutory scheme. The principle that a person should not approbate or reprobate has to be applied considering that the petitioner, respondent herein, had applied for withdrawal of the application for voluntary retirement knowing that he had not received any notice of having been withdrawn or permission granted to withdraw it. He had also accepted the terminal benefits.
27. In the instant case, as we have earlier considered the facts and circumstances of the case, at the highest, it can be said that one of the reasons given for refusing to withdraw the application for voluntary retirement was extraneous. The money was not received under protest. The appellants have rightly contented that their conduct could not be faulted considering that they had paid all terminal benefits immediately on superannuation of the respondent which he received. In the instant case, as the money was received without protest, the amount was encashed without protest, the petitioner, thus, himself accepted the rejection of the application for withdrawal and/or the order superannuating him from service.
28. In this circumstances, in our opinion, the petitioner could not have approached the writ court to contend that action of the appellant was arbitrary and in violation of Articles 14 and 16 of the Constitution of India. The action of the appellants cannot be said to be arbitrary or contrary to the provisions of the Rules, which have been quoted herein above.
29. As noted earlier, the appellants informed the petitioner much in advance of the acceptance of his application for voluntary retirement, the petitioner chose to maintain silence on the same and only on the night of 29.8.2009, the appointing authority was put to notice of an application, while the voluntary retirement was taken effect on 31.8.2009. In our opinion, considering these circumstances, the action of the appellants refusing to consider the application for withdrawal and/or relieving him from service cannot be faulted.
30. For the reasons aforesaid, we find merit in this appeal, which is accordingly allowed and the impugned order of the learned Single Judge is set aside. No order as to costs.