Bharatkumar Chandravadav Dave vs State of Gujarat and Others

Bhagwati Prasad, J.—The present appeal is filed by the appellant - original petitioner being aggrieved by the judgment and order dated 3rd August 2004 passed by the learned Single Judge in Special Civil Application No. 996 of 2003 filed by the petitioner by virtue of which he has sought a direction that the voluntary retirement offer, as made by him has wrongly been accepted by respondent No. 2 - Gujarat Agro Industries Corporation Limited (hereinafter referred to as ''the Corporation'') because, before his voluntary retirement offer could actually come into operation, he had withdrawn his offer.

The judgment was delivered by the learned Single Judge on the ground that the respondents floated a scheme for voluntary retirement for the employees who are willing to give up their position as employees of it. The scheme in question was floated vide letter dated 14th November 2002. This scheme was to remain in operation till 4th January 2003. Its currency was extended up to 20th January 2003. Pursuant to the aforesaid scheme the appellant made an offer to the respondent - Corporation to voluntarily retire him on 4th January 2003, the date on which the scheme was to expire, but its currency was extended till 20th January 2003. The extension came to be made on 10th January 2003. The case of the petitioner that on 17th January 2003 he wrote a letter to the respondent No. 2 - Corporation that he wants to withdraw his application for voluntary retirement. Though the application is dated 17th January 2003, it was received by the Corporation on 18th January 2003. On 27th January 2003 an office order was passed by the respondent-Corporation informing the petitioner that his application for voluntary retirement is accepted with effect from 7th February 2003. By this, the request of the petitioner for withdrawal of the offer made by him for voluntary retirement was rejected. Thus, the petitioner moved aforesaid Special Civil Application.

After considering the case of the petitioner, the learned Single Judge rejected the petition filed by the petitioner by observing that once the offer having been made and was accepted, the petitioner could not have been permitted to withdraw the same in view of the law laid down by the Honourable Supreme Court in the case of State Bank of Patiala Vs. Romesh Chander Kanoji and Others, Being aggrieved by such decision, the present Letters Patent Appeal is filed before us.

The argument of the learned Counsel for the appellant was that the learned Single Judge was not right in holding that in the case of State Bank of Patiala (supra) the Supreme Court has laid down a law in terms not permitting the petitioner to withdraw the application once made. According to the learned Counsel, the case of State Bank of Patiala (supra) was in the background that the scheme had come to an end and after closure of the scheme the Court has said that it would not be possible for permitting the withdrawal of the application made once. Therefore, in that background, the law came to be laid down in the case of State Bank of Patiala (supra), which was not stated in the case that law as laid down in the case of Bank of India and Others Vs. O.P. Swaranakar etc., was not a good law. In fact, the Hon''ble Supreme Court in the case of State Bank of Patiala (supra) has applied the case of O.P. Swarankara (supra). According to the learned Counsel, if the ratio, as laid down in the case of O.P. Swarankara (supra) is perused, then it will be seen that it is not the withdrawal simplicitor which is relevant in the cases where voluntary schemes are to be considered. It has to be seen in conjunction with other factors as well as has been noticed by the Honourable Supreme Court in the case of O.P. Swarankara(supra) and he has placed reliance on that portion of the judgment wherein the Hon''ble Supreme Court has quoted the ratio laid down in the case of Shambhu Murari Sinha v. Project and Development India Ltd. (2002) 5 SCC 621 and has placed reliance on following paragraphs of that judgment:

The respondent received a letter dated 20th February, 1986 that he would prematurely retire from service with effect from 31-8-1986. On a writ petition moved by the respondent before the Karnataka High Court, it was held that having regard to the offer made on 19-2-1986, the subsequent action taken by the Department on 20th February, 1986 had no effect. In this Court an argument was advanced that having regard to the policy decision to which the respondent was aware and having given a certificate at the time of submission of application for premature retirement that he was aware of the fact that his request for withdrawal or cancellation subsequently would not be accepted, the impugned judgment of the High Court was erroneous but rejecting the same this Court held:

We have carefully considered the submissions of the learned Counsel appearing on either side. The reliance placed for the appellants on the decision reported in Raj Kumar case is in appropriate to the facts of this case. In that case this Court merely emphasised the position that when a public servant has invited by his letter of resignation determination of his employment his service clearly stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the condition of the service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority and that till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned had locus poenitentiae but not thereafter.

In Shambhu Murari Sinha''s case it was held:

Coming to the case in hand the letter of acceptance was a conditional one inasmuch as, though option of the appellant for the voluntary retirement under the scheme was accepted but it was stated that the "release memo along with detailed particulars would follow." Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated 7-8-1997 and 24-9-1997, but there was no response from the respondent. By office memorandum dated 25-9-1997 the appellant was released from the service and that too from the next day. It is not disputed that the appellant was paid his salaries etc. till his date of actual release i.e. 26-9-1997, and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and the said relationship continued till 26-9-1997. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the appellant had locus penitential to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end." Shambhu Murari Sinha Vs. Project and Development India Ltd. and Another,

It may be that therein there did not exist a clause to the effect that once an option to voluntary retirement is accepted, the employee cannot withdraw the same, but the law laid down therein would apply herein also.

The submission of learned Attorney General that as soon as an offer is made by an employee, the same would amount to resignation in present cannot be accepted. The scheme was in force for a fixed period. A decision by the authority was required to be taken and till a decision was taken, the jural relationship of employer and employee continued and the concerned employees would have been entitled to payment of all salaries and allowances etc. Thus it cannot be said to be a case where the offer was given in present but the same would be prospective in nature keeping in view of the fact that it was come into force at a later date and that too subject to a acceptance thereof by the employer. We, therefore, are of the opinion that the decisions of this Court, as referred to herein before, shall apply to the facts of the present case also.

Learned Counsel for the appellant stressed that in the case of Shambu Murari Sinha (supra), before the actual date of termination of the jural relationship of employer and employee, the application for withdrawal of the offer of jural relationship was given. In the case on hand, the jural relationship, according to the learned Counsel for the respondents was to come to an end on 27.2.2004. That being the date communicated by the respondent-Corporation to the appellant on 27.1.2003, the acceptance of offer as recorded in the records of the respondent on 7.2.2003 is not the order which has the effect of terminating the jural relationship of employer and employee. Thus, according to the respondent-Corporation the jural relationship was to come an end on 17.1.2003. That being the position, according to the learned Counsel, the jural relationship when was to come to an end on 7.2.2003 and his withdrawal from the scheme has been made by him on 17.1.2003 and which was received by the respondent-Corporation on 18.1.2003, i.e. prior to the date on which the jural relationship was to come to an end. That being the position, withdrawal was prior to the date when it could be made and in view of the law laid down in the case of O.P. Swarnakar (supra) in paragraph 112, which is quoted herein above, would apply. In that view of the matter, learned Counsel for the appellant submits that the learned Single Judge was not right in not accepting the plea of the petitioner.

Per contra, Mr. Nanavati, learned Counsel for respondent-Corporation submitted that it would not be a right proposition to say that once the offer of voluntary retirement is made, the same can be withdrawn because, the Scheme very clearly envisages that offer once made was not liable to be withdrawn. That being the position, the offer was made by the appellant and the same was not to be withdrawn when the Scheme states that offer once made cannot be withdrawn. He further stresses that the appellant-employee knew of the order being passed on 17th January 2003 that his offer for voluntary retirement has been accepted, but then, without informing the office he left the office and played hide and seek game with his employer and thus came the order dated 27th January 2003 seeking his relieving from office on 7th February 2003. He has also placed reliance on the law laid down by the Honourable Supreme Court in the case of O.P. Swarnakar (supra), he read the judgment in extenso. When reading came to paragraphs 111 and 112, he was not able to show why the law made by the Honourable Supreme Court in Shambhu Murari Sinha''s case (supra) would not govern the facts of this case. Then, he read to us another case in the matter of Food Corporation of India and Others Vs. Ramesh Kumar, In that case also the Honourable Supreme Court has stated that before the offer of voluntary retirement could be acted upon, if the same is revoked, it is not possible for the employer to retire the person. In the instant case also the same is the position. Before the order of relieving could be passed on 27th January 2003, the appellant had withdrawn his offer of voluntary retirement on 17/18th January 2003. Thus, from the facts and the arguments stated herein above, we are of the opinion that if the ratio in the case of O.P. Swarnakar (supra) is applied to the present facts and circumstances then, law as has been enunciated in paragrpahs 111 and 112 of the judgment following the judgment of Shambhu Murari Sinha (supra) we see that before actual termination of the jural relationship of employer and employee there was an effective withdrawal from the offer of voluntary retirement. That being the case, the scheme has not envisaged that there was any particular time limit for withdrawal from the voluntary retirement scheme and the scheme continued up to 20th January 2003. Before that the withdrawal letter was made by the appellant. In our considered opinion rightly so and respondent was not correct in refusing to accept the request to withdraw from the voluntary retirement scheme and therefore was required to keep the appellant in service continued notwithstanding his offer, which was subsequently withdrawn.

In view of the aforesaid circumstances, we set aside the order of the learned Single Judge and allow the appeal. There shall be no order as to costs.

In view of the disposal of the main appeal, no order is required to be passed on civil application and the same is disposed of accordingly.