Full Judgment Text
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CASE NO.:
Appeal (civil) 2639 of 2000
PETITIONER:
SHAMBHU MURARI SINHA
Vs.
RESPONDENT:
PROJECT & DEVELOPMENT INDIA LTD. & ANR.
DATE OF JUDGMENT: 13/03/2002
BENCH:
S.N. Phukan & P. Venkatarama Reddi
JUDGMENT:
Phukan, J.
In this appeal by special leave the appellant has assailed the
judgment dated 21-06-1999 passed by the Patna High Court in LPA No.57 of
1999 (R). By the impugned judgment the Division Bench affirmed the judgment
of the learned Single Judge dated 03-02-1999 passed in CWJC No.2970 of 1997
(R).
The appellant joined the respondent-company as a Draftsman
Trainee in the year 1964 and was promoted to the post of General Foreman
(Electrical). On October 12, 1995, the respondent-company issued an improved
Voluntary Retirement Scheme (for short ’VRS’) giving more benefits to the
employees, which was effective from 12the October, 1995 to 18th October, 1995.
The appellant applied for voluntary retirement on 18th October, 1995 under the
scheme, which was accepted by the Management on 30th July, 1997 with the
condition that ’the release memo along with details particulars will follow’. On
August 07, 1997, the appellant sent a letter withdrawing his option from the VRS
by registered post but no response was received by him from the respondents.
Again on September 27, 1997 another letter was sent by the appellant
withdrawing his option from the scheme. This letter was received on 25th
September, 1997 but there was no reply from the respondent. The respondent-
company issued a memorandum on 25th September, 1997 releasing the
appellant from the service of the company w.e.f. 26th September, 1997
(afternoon). The appellant filed a petition under Article 226 of the Constitution
before the High Court challenging the said release order, which was dismissed
by the learned Single Judge and it was upheld by the impugned judgment. That
is how the matter is before us.
This appeal came up for final hearing before a Division Bench of
this Court and by order dated April 13, 2000, the appeal was allowed on the
reasoning that the appellant was not relieved from service and was allowed to
continue in service till 26-09-1997, which, for all practical purpose would be the
"effective date" as it was on this date that he was relieved from service. As the
appellant had already withdrawn the offer from VRS on 07-08-1997, the
resignation in spite of its acceptance could be withdrawn before the said
"effective date" and, therefore, such withdrawal was valid in law [See Shambhu
Murari Sinha versus Project & Development India & Another (2000) 5 SCC
621]. The Division Bench relied on the following decisions of this Court namely,
Balram Gupta versus Union of India [(1987) Supp. SCC 228], J.N. Srivastava
versus Union of India [(1998) 9 SCC 559] and Power Finance Corpn. Ltd.
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versus Pramod Kumar Bhatia [(1997) 4 SCC 280].
A Review Petition was filed by the respondents which was allowed
by another Division Bench of this Court and the order is extracted below:-
"Delay condoned.
Heard counsel for the parties.
We find that the scheme providing for voluntary
retirement of employees, prima facie, discloses that
once an option to voluntary retire is exercised by an
employee and the same is accepted by the employer,
the employee is not entitled to withdraw the voluntary
retirement. The said scheme which has bearing on the
case was not adverted to while deciding this appeal.
Further, the decision of this Court in Balram Gupta vs.
Union of India & Anr. 1987 (Supp.) SCC 228, Raj Kumar
vs. Union of India, 1968 (3) SCR 857 and Union of India
vs. Gopal Chandra Mishra, 1978 (2) SCC 301 which are
applicable to this case were not considered while
deciding the appeal. Moreover, the decision under
review is likely to affect a large number of employees.
We are, therefore, of the opinion that the judgment under
review deserves to be reviewed. We, therefore, set
aside the judgment dated 13.4.2000 and restore the
appeal to its original number. The Review Petition is
thus allowed. Let this appeal be posted for hearing.
In view of the decision on Review Petition, the Contempt
Petition is rejected."
We have perused the whole scheme and we do not find any
condition that once an option to voluntary retire is exercised by an employee and
the same is accepted by the employer, the employee is not entitled to withdraw
from voluntary retirement. This position is accepted at the Bar. While allowing
the appeal, the Division Bench of High Court in fact considered the ratio laid
down in Balram Gupta’s case (supra).
The short question to be decided is what was the effective date in
the case in hand, before which the appellant could have withdrawn his offer of
the voluntary retirement under the scheme.
The only contention raised before us by the learned counsel for the
appellant is that in view of the law laid down by this Court since 1978, the
appellant 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 this contention learned counsel has placed before us various
decisions of this Court.
Per contra, the learned counsel for the respondent has contended
that from the date of acceptance of the letter of voluntary retirement by the
respondent, the relationship of employer and employee came to an end and,
therefore, the appellant ceased to be an employee of the respondent w.e.f. 30th
July, 1997. Learned counsel also sought to raise the question of financial burden
on the respondent-company, which we need not consider while deciding the legal
issue involved in the present appeal.
A Constitution Bench of this Court in Union of India & Others
versus Gopal Chandra Misra & Others [(1978) 2 SCC 301] in paragraph 50
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.’ (emphasis
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ours) As stated above in the present case in the VRS, there was no indication
regarding effective date of voluntary resignation and there is also no condition
that once it was accepted it could not be withdrawn.
In Balram Gupta versus Union of India & Anr. [(1987) Supp. SCC
228] the principle laid down in Gopal Chandra Misra (supra) was summarised
as follows:-
"A complete and effective act of resigning office is one
which severs the link of the resignor with his office and
terminates his tenure."
In Balram Gupta’s case, the appellant-employee offered to
voluntary retire from service w.e.f.31st March, 1981 and accordingly sent a letter
within the notice period. However, he changed his mind and sent a letter on
31.01.1981 seeking to withdraw his notice of voluntary retirement but the request
was disallowed by the concerned authority on the ground that the withdrawal of
notice could only be with the specific approval of the authority. This Court held
that the dissolution of the contract of employment would be brought about only
on the date indicated i.e.31.03.1981 and upto 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.
The decision in J.N. Srivastava versus Union of India [(1998) 9
SCC 559] is also to the same effect. This Court held 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
poenitentiae to withdraw the proposal for voluntary
retirement. The said view has been taken by a Bench of
this Court in the case of Balram Gupta versus Union of
India."
In Nand Keshwar Prasad versus Indian Farmers Fertilizers
Cooperative Ltd. & Ors. [(1998) 5 SCC 461], in paragraph 11, this 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 was
also 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 provisions, the
retirement mentioned in the letter of 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 employee concerned did
not intend to retire from such earlier date."
In Raj Kumar versus Union of India [(1968) 3 SCR 857] the
normal rule has been stated as follows:-
"When a public servant invited by a letter of his
resignation determination of his employment, his service
normally 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 conditions of his 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 in
consonance with the rules governing the acceptance,
the public servant concerned has locus poenitentiae but
not thereafter."
The above cases may not have direct application to the facts of the
present case, however, the principles laid down therein deserve notice.
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In Power Finance Corporation Ltd. versus Pramod Kumar
Bhatia [(1997) 4 SCC 280] this Court went a step further and observed 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."
It was pointed out in that case that the acceptance of voluntary
retirement was not unconditional and before the conditions could be complied
with, the employee could withdraw from the scheme. On those facts, the above
observations were made. It is not necessary to consider whether in all cases,
actual relief becomes the crucial date. However, the ratio of decision in Balram
Gupta’s case coupled with the observations of the Constitution Bench in Gopal
Chandra Misra’s case (underlined above) could usefully applied to the present
case.
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 August 07, 1997 and September 24, 1997, but there
was no response from the respondent. By office memorandum dated 25th
September, 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 September, 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 said relationship continued till 26th of September, 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
poenitentiae to withdraw his proposal for voluntary retirement before the
relationship of employer and employee came to an end.
We, therefore, hold that the respondent could not have refused to
accept the resignation of the appellant as it was sent before the jural relationship
of employee and employer came to an end. Consequently, the impugned
judgment is liable to be set aside, which we hereby do. The appellant shall be
entitled to rejoin his duty and he shall be paid all his salaries and other benefits
during the period he was out from the service. The learned counsel for the
respondent has stated that by this time the appellant might have retired from
service on attaining the age of superannuation, if that be so, he shall be paid full
salary and allowances for the entire period he was out of service till the date of
his retirement and thereafter, he shall be entitled to get all retiral benefits
counting the above period as if he was in service.
We, therefore, allow the appeal by setting aside the impugned
judgment. We leave the parties to bear their own cost.
J.
[S.N. PHUKAN]
J.
[P. VENKATARAMA REDDI]
March 13, 2002
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