Judgment:
Dr. Dharam Paul Sharma, Member (J):
The applicant herein assails the legality of the order passed by the Respondent on 31.03.2005, copy of which is at Annexure-P/1. By that order, the respondent took cognizance of the applicants request for voluntary retirement made on 21.02.2005 and gave effect to the same by relieving the applicant w.e.f. 31.03.2005 in the afternoon. The applicant felt aggrieved by the impugned order for the reason that he had already withdrawn his request for voluntary retirement on 14.03.2005 before its acceptance by the respondent and thus there was nothing for the respondent to accept on 31.03.2005 when the impugned order was passed.
2. The applicants case is that he has been serving with the respondent in various capacities for the last 34 years. During his entire service career, he remained transferred/posted out of Delhi for about 25 years. He was working as Vice President (East), India Tourism Development Corporation Ltd. (for short ITDC) at the time of voluntary retirement (impugned order). Vide order dated 17.02.2005 (Annexure P/2), the respondent transferred the applicant and posted him as Vice President (East) to look after all the business operations including projects in Eastern Division and directed him to operate from Calcutta. The applicant made a representation against the said transfer on 21.02.2005 (Annexure-P/3) wherein he stated certain reasons explaining as to how he could perform his duties as Vice President in Eastern Division while located at New Delhi and accordingly requested the respondent to allow him to operate from New Delhi instead of Calcutta. The marriage of applicants only daughter was fixed on 13.07.2005 and he had already started necessary arrangements/preparations for the marriage. Since there was no other male member in the family except the applicant, he submitted an application on 21.02.2005 seeking voluntary retirement from service though no Voluntary Retirement Scheme was in operation at that time. He made further representation on 02.03.2005 (Annexure-P/6) seeking permission to stay in Delhi at least till solemnization of the marriage of his daughter. An endorsement was made on the applicants representation by GM (HR) conveying approval to the officer for deferring his transfer to Calcutta till 31.07.2005 in view of his daughters wedding which was fixed for 13.07.2005. It is further stated that request for VRS to be considered when funds are made available. Since the applicant had sought voluntary retirement on account of the difficulties arisen from his transfer at the time of his daughters marriage and the said transfer was subsequently deferred till 31.07.2005, his difficulties no longer existed after 31.7.2005. As such there was no need for him to seek voluntary retirement. Therefore, he submitted an application on 14.03.2005 seeking permission to withdraw his request, dated 21.02.2005, for voluntary retirement, stating that after 31.07.2005 he would not have any difficulty to leave Delhi and would be in position to relocate himself as directed. Thereafter, the applicant filed Writ Petition (C) No.5446/2005 in the High Court of Delhi on 24.03.2005 praying that the respondent be restrained from accepting his request for voluntary retirement. The said writ petition, however, became in fructuous in view of the respondents passing the impugned order relieving the applicant on 31.03.2005. Feeling aggrieved, the applicant filed another writ petition being W.P. (C) No.8720/2005 in the High Court of Delhi challenging the legality of the impugned order. The said petition has now been transferred to this Tribunal pursuant to the notification issued by the Central Government vide Notification No. SO (E) dated 1.12.2008. This is how the matter has come up before us.
3. The main thrust of the applicants contention is that he is well within his right to withdraw his request for voluntary retirement before its acceptance and in support of his contention reliance has been placed on the Honble Supreme Courts decision in Bank of India and Ors. Vs. Swarnakar and Ors. (2003) 2SCC 721. It has further been contended that there are no rules and regulations of the respondent which permit an employee to proceed on voluntary retirement any time whenever that employee so desires. The employee can only opt to proceed on voluntary retirement under a Voluntary Retirement Scheme as and when floated by the respondent. In the present case, the respondent did not float any Voluntary Retirement Scheme under which the applicant could have applied for voluntary retirement. The applicant submitted his application for voluntary retirement on the understanding that the cognizance of his request would be taken whenever Voluntary Retirement Scheme is floated. Furthermore, the applicants transfer to Calcutta had already been deferred till 31.7.2005. Nevertheless the respondent acted in haste with malaise intention to relieve the applicant on 31.3.2005 and also ignoring the applicants request for withdrawal of his option for voluntary retirement dated 14.3.2005.
4. The respondent has opposed the application in the counter affidavit, raising certain preliminary objections including the one that the applicant has taken re-employment with a new employer and as such the application has itself become in fructuous and ineffective as no relief can be granted in his favor. As on merits, the respondent has placed strong reliance on Para 8.2 of the terms and conditions of the Voluntary Retirement Scheme according to which the applicant could not withdraw his application for voluntary retirement once the same had been submitted by him. It is further submitted that para 9 of the General Conditions of the terms and conditions of the Voluntary Retirement Scheme clearly states that communications will be sent only in the cases where applications are rejected on any ground. Since the applicants request for voluntary retirement had already been accepted by the management of the respondent, no communication was required to be given and only his subsequent discharge was left for want of funds. It was further submitted that Bank of Indias case (Supra) relied upon by the applicant was not applicable to the facts of the present case. On the strength of these arguments, it is submitted by the respondent that the impugned order is not, in any way, contrary to the principles of service jurisprudence and the same has been passed as per the terms and conditions of Voluntary Retirement Scheme and, therefore, the application be dismissed with the exemplary costs on the applicant.
5. At the hearing, learned counsel for the respondent referred to the applicants request for voluntary retirement made on 21.2.2005 in the prescribed form, a copy of which is at Annexure-P/4. A plain reading of the said letter will show that it purports to be in response to a Voluntary Retirement Scheme floated by the respondent. However, the fact remains that no such Voluntary Retirement Scheme was floated by the respondent at that time and as such no Voluntary Retirement Scheme was in operation under which the applicant had made a request for voluntary retirement. Although the said letter is purported to be in response to a Circular nevertheless neither the Circular number nor the date of the Circular is mentioned in the letter. As a matter of fact, the respondent had floated a Voluntary Retirement Scheme which was in operation from 01.12.2003 to 31.12.2003, a copy of the said Scheme is at Annexure-P/5 (Colly). The said Scheme was later on extended for a limited period up to 10.7.2004. No such Scheme was ever floated thereafter.
6. The learned counsel for the applicant referred to the endorsement made by the respondent on the applicants letter dated 02.03.2005, copy of which is at Annexure-P/6 wherein the applicant requested the respondent to allow him to stay in Delhi in view of his daughters marriage fixed on 13.7.2005. In the said letter, the applicant explaining the circumstances stated that in the circumstances he has left with no option but to exit the Organization through VRS when it is floated. The endorsement made on this letter is to the effect that his transfer to Calcutta was deferred till 31.7.2005 and the applicants request for voluntary retirement will be considered when funds are available. Since the applicants request was pending consideration until the availability of the requisite funds, it could not be said that the applicants request had already been accepted by the respondents. Furthermore, since the respondent had already allowed the applicant to work in Delhi up to 31.7.2005, the relationship of employer and employee between the applicant and the respondent continued till that time. There is a letter dated 14.03.2005 sent by the applicant to the Chairman and MD, ITDC, New Delhi, a copy of which is at Annexure- P/7 wherein the applicant thanked the Management of Respondent for allowing him to continue in Delhi keeping in view the peculiar circumstances in which the applicant had sought voluntary retirement which no longer existed as he was allowed to remain in Delhi enabling him to perform his daughters marriage and in view of these circumstances, the applicant withdrew his request for voluntary retirement for he was now in a position to relocate himself anywhere after fulfilling his family responsibilities. There is no reference in the impugned order to this letter dated 14.03.2005 (Annexure-P/7) wherein he had withdrawn his request for voluntary retirement.
7. The learned counsel referred to and relied upon in this regard the case of Srikantha S.M Vs. M/s Bharati Earth Movers Ltd. (JT 2005 (12) SC 465. In that case, the appellant was to continue his service up to 15.01.1993 and he withdrew his resignation on 08.01.1993. In these circumstances, it was held that the appellant could have withdrawn his resignation before 15.01.1993. Admittedly, the letter of withdrawal of resignation was submitted on 8.1.1993. It was further held that in the circumstances it was incumbent on the respondent-Company to give effect to the said letter of 8.1.1993 and failure to do so was contrary to law and the decisions of the Supreme Court and hence the action of the respondent-Company was quashed and set aside.
8. Another case referred to and relied upon by the learned counsel for the applicant is that of Shambhu Murar Sinha Vs. Project and Development India and Anr. (JT 2000 (6) SC 358 ) wherein the question involved was whether it was open to a person having exercised option of voluntary retirement to withdraw the said offer after its acceptance but before it is made effect. The question was answered in affirmative relying upon the three decisions, namely, Balram Gupta Vs. Union of India and Anr. (JT 1987 (3) SC 480); J.N. Srivastava Vs. Union of India and Anr. (1998) 9 SCC 559); and Power Finance Corporation Ltd. Vs. Pramad Kumar Bhatia (JT 1997 (4) SC 300).
9. Another case referred to and relied upon by the learned counsel for the applicant is Bank of India and Ors. Vs. Swarnakar and Ors. (Supra), wherein it has been held by the Apex Court that despite the prohibition clause in the Scheme, High Court rightly held that the employee could withdraw his option for the Scheme before the said was accepted. It was further held that VRS constituted an invitation to treat and not a proposal or an offer, the acceptance of which by an employee could fructify in a concluded contract. Moreso, when no consideration was passed from either side. It was rather the Banks acceptance of the employees proposal that would constitute a promise and culminate in an enforceable contract. Since the Scheme required a decision on such option to be taken by the authority concerned, held the employer-employee relationship continued till the employers acceptance of the employees offer.
10. The applicants learned counsel further relied upon a decision of Delhi High Court in the case of Devi Ram Vs. UOI and Ors. in the W.P. (C) 5626/2000 decided on 19.1.2007 wherein the High Court observed that 3..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 penitential to withdraw the proposal for voluntary retirement. On the strength of the aforesaid authority, learned counsel for the applicant strongly contended that the transfer order of the applicant was deferred till 31.7.2005. Since the difficulty on account of which he opted for voluntary retirement was no longer there, he withdrew his option on 14.3.2005. Therefore, no option was available to the respondent for acceptance on 31.3.2005 when the impugned order was passed and as such the applicant continued to be in service of the respondent and is entitled to all the consequential benefits.
11.The learned counsel for the respondent submitted that the applicant wanted to stay in Delhi and for that purpose he put pressure on the respondent by opting for voluntary retirement. Once such option had been made, the same was withdrawn by the applicant before acceptance of his request for voluntary retirement by the respondent. This decision of such withdrawal was also taken by other employees in the past.
12. It is strongly contended by the learned counsel for the respondent that the applicant has no right to withdraw his request when his request for voluntary retirement had been accepted by the respondent and only his relieving was deferred subject to availability of funds. Learned counsel for the respondent referred to the case of State Bank of Patiala Vs. Romesh Chander Kanoji and others ( (2004) 2 SCC 651) wherein it was, inter alia, held that the employees stood precluded from withdrawing from VRS after the date of its closure.
13. Another case referred to and relied upon by the learned counsel for the respondent is P.Lal Vs. Union of India and others ( AIR 2003 SC 1499) wherein the Apex Court, inter alia, observed that The requirement of communication of acceptance would only arise in cases where, even after giving of notice of voluntary retirement the member continues to work/perform his duties. In such cases the member would need to know from what date he can stop attending office. In cases where the member has by his own conduct abandoned service the severance of the relationship of master and servant takes place immediately on acceptance of notice. Therefore, it cannot be countenanced that since Govt. had not communicated acceptance before employee withdrew his request for voluntary retirement, the relationship of mater and servant had continued.It is accordingly contended that having joined the services of another employer, the applicant has abandoned his service and in such cases, no notice is required.
14. We have given careful consideration to the respective submissions made by both the parties. We have also carefully perused the facts of the case.Voluntary Retirement Schemes are called as Funded Schemes which are designed to help the Organization in meting out the problems of surplus staff. Such Scheme provide for financial inducements to employees to motivate them to voluntary retirement and thereby helping the Organizing in reduction of surplus manpower so that optimum utilization of manpower , efficiency ;and economic viability of the Organization is achieved. Such Schemes are not operative by all times. They are specifically brought into force for a limited period as and when exigencies so wanted. Normally, they reserved themselves a right to extend/re-introduce a period of operation of such Schemes or to withdraw or suspend operation of the Scheme without any notice or without assigning any reason therefore. An employee can opt such voluntary retirement when the Scheme is in operation. No employee can claim as of right the voluntary retirement and can deform such Scheme. Thus, where an employee has opted for voluntary retirement under Scheme which has subsequently been withdrawn, the option for voluntary retirement cannot be given effect to and the employee cannot claim the benefits thereto as a matter of right as has been held in the case of Power Finance Corporation Ltd. Vs. Pramad Kumar Bhatia ( JT 1997 (4) SC 300) (Supra).In the present case, though Voluntary Retirement Scheme was in operation on 15.3.2005 when the applicant sought to apply for voluntary retirement. Even though the request was made in a prescribed proforma taken from ITDC for VRS that was operative for a limited period up to 10.7.2004, yet the fact remains that on 21.2.2005 no such Voluntary Retirement Scheme was in operation. In the absence of any Voluntary Retirement Scheme, neither any request for voluntary retirement can be made by an employee nor any such request can be given effect to by any employer. Admittedly, it is open for the Organization to keep such request pending consideration and as and when sufficient number of such requests are received and the requisite funds are available with the Organization, the Organization may bring into force such Scheme for voluntary retirement to deal all such applications for voluntary retirement. This finds force from the applicants letter dated 02.03.2005 (Annexure-P/6) wherein the applicant sought for voluntary retirement from the Organization and an endorsement is made thereon by the GM (HR) to the effect that the request for VRS to be considered when the funds are made available. Furthermore, when the transfer of the applicant was deferred till 31.7.2005, the relationship of employer and employee between the respondent Company and applicant continued till that date. In these circumstances, the applicants withdrawal of his request for voluntary retirement vide letter dated 14.3.2005 (Annexure- P/7) is not open to any objection. The reliance placed by the respondent on the provisions of Voluntary Retirement Scheme is apparently misplaced when no such Scheme was in operation at that time. Even otherwise law on the subject is clear as has been clearly stated by the Honble Apex Court in Shambhu Murari Sinhas case (Supra). Even if the effective date is taken as 31.3.2005, the withdrawal of applicants request for voluntary retirement on 14.3.2005 was in order. The cases referred to by the respondents to the contrary in this regard are not relevant in view of the fact that the withdrawal of applicants request for voluntary retirement was not after the closure of the Scheme when there was no Scheme in operation.It would be relevant to note that the respondent had already deferred the transfer of the applicant upto 31.3.2005. However, after the applicant had withdrawn his request for voluntary retirement, the respondent seems to have acted in haste in passing the impugned order dated 31.3.2005 relieving the applicant on the same very date. There is no mention of applicants request for withdrawal of voluntary retirement in the impugned order dated 31.3.2005 and ,therefore, the impugned order is vitiated as having been passed when the Voluntary Retirement Scheme did not exist or no such Scheme was in operation.It may be relevant to note in this regard the following observations made by the Apex Court in the case of Balram Gupta Vs. Union of India and Anr. (JT 1987 (3) SC 480) (supra) while holding that it was not proper for the Government not to accede to the request of the employee;In the modern and uncertain age it is very difficult to arrange ones 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 cour cannot but condemn circuitous ways to case out uncomfortable employees. As a model employer the government must conduct itself with high probity and candour with its employees.In these circumstances, we have the considered view that the impugned order is not sustainable in law and the same is quashed and set aside accordingly. Accordingly the OA is allowed. The impugned order dated 31.3.2005 is quashed and set aside. The respondent-Company is directed to treat the applicant in continued service and give him all the benefits including arrears of salary. The respondent-Company may adjust the amount paid to the applicant or that has been earned by the applicant through an alternative employment during the intervening period. No cost.