T.K.M. Thampi vs The Chairman, IBP-Balmer Lawrie Group of Companies, The Managing Director, Balmer Lawrie and Company, Ltd., The General Manager (HR), Balmer Lawrie and Company, Ltd. and The General Manager (Chennai), Balmer Lawrie and Company, Ltd.

K. Sampath, J.—The prayer in the writ petition is for a certiorified mandamus to call for the records of the General Manager (HR), the third

Respondent herein in letter No. CPD/MO 236/VRS/98002 dated 27.7.1998, quash the same and direct the Respondents to reinstate the

Petitioner in service as Senior Manager (MPD-South) in the Branch Office of the Company M/s Balmer Lawrie & Company, Ltd., at Chennai as

ever before with all attendant benefits, including Pay and Allowances, Seniority and arrears of pay for the period of non-employment.

The allegations as set out in the affidavit in support of the writ petition are as under;

The Petitioner was selected and appointed as Manager-Personnel and Administration in Balmer Lawrie and Company, Ltd., by order dated

6.2.1981 and he joined duty at Cochin on 18.3.1981. His services were confirmed on 21.6.1982 with effect from 18.3.82. He was promoted to

the post of Senior Manager (P&A) in Grade-E, Madras Operation on 18.12.1987. He had not been treated properly by the company and he was

victimised. He was shifted to an insignificant position with effect from 1.9.1988 without assigning any reason. He was subjected to transfer from

one place to another six times to cause personal inconvenience to him, to his family and to the education of his children. A Vigilance investigation

was ordered on baseless grounds in 1989 and it was proved to be futile in 1990. However, the policy of causing harassment to the Petitioner went

on unabated. On 27.6.1997 his administrative powers were taken away from him to humiliate him further in the eyes of his juniors and new

recruits. He put up with all those things.

He was pressurised to go on voluntary retireme it under the scheme of the company and threatened that if he failed to opt for voluntary

retirement he would be sacked /transferred to a very insignificant position at a far off place. Several words of administrative jargons were used

against him resulting in his getting depressed. In such a depressed state of mind and on the compulsion of Respondents 2 to 4, he submitted an

application for voluntary retirement without any consideration of his children and his family on 30.4.1998 stating that it would take effect after three

clear months from the dat3 of the application it had been taken compulsorily from him by Respondents 2 and 3. More than the Petitioner his wife

was very much opposed over the whole thing and she wanted to make a representation to the higher authorities. However, the Petitioner prevailed

on her not to make any representation.

After the submission of the application for voluntary retirement, there was a vital change of circumstances. There was enhancement of age of

superannuation by the Government of India by two years and this was made applicable to the category of officials to which he belonged. This

effectively caused an extension of two years of his eligibility to start receiving pension from 1.12.99 to 1.12.2001. The Petitioner had not acquired

any asset, nor has he got any living accommodation anywhere. The life of the members of his family would become miserable in these days of

spiralling prices and high rate of inflation. The chance of getting another employment at an advanced age was also bleak. The education of his

children also had to be taken care of. In the said circumstances, the Petitioner wanted to withdraw the application for voluntary retirement and on

15.7.1998 he wrote to Respondents 2,3 and 4 stating that he had withdrawn his voluntary retirement application dated 30.4.1998. He also wrote

to the Chairman of the Company on 18.7.1998 explaining the circumstances under which he filed an application for voluntpry retirement and also

the circumstances which necessitated his withdrawing of the application.

However on 29.7.1998 he was served all on a sudden an order retiring him from service with effect from the afternoon of 29.7.1998. He

received the order under protest. In paragraph-2 of the said order retiring him from service, it is stated that his application for voluntary retirement

was accepted by the Company and it was also communicated to him in a letter dated 3.6.1998. It is a travesty of truth. No such communication

was received by him. The Company had created a letter as an after thought, after the Petitioner had withdrawn his voluntary retirement application

on 15.7.98. In the name of voluntary retirement the company was retiring the Petitioner compulsorily with effect from 29.7.98. It is his prerogative

to withdraw the application for voluntary retirement. He had been subject to arbitrary action in violation of the fundamental and other rights. In the

circumstances, the writ petition has been filed.

The several grounds set out in the writ affidavit are as under:

Voluntary retirement could not be forced by the Company against the Petitioner. It is violative of his rights under Articles 14,16,19 and 21 of the

Constitution of India. The Petitioner had withdrawn his application for voluntary retirement on 15.7.98 before the date his application was to take

into effect namely, 1.8.98. It was not open to the Company to say that his application for withdrawal could not be acted upon. It amounted to

retiring him from service compulsorily. Right to withdraw could be invoked during the notice period of three months or before the date voluntary

retirement was sought for. The scheme of the company relating to voluntary retirement is not applicable as it does not say anything about the

withdrawal of voluntary notice. The Petitioner had every right to change his mind and the Company had no right to say that his withdrawal could

not be accepted. The voluntary retirement had been obtained employing pressure on him. Again the authority to pass final orders accepting the

voluntary retirement was only the Managing Director of the Company and in the instant case only the General Manager (HR) had passed the order

on 27.7.98. The order is liable to be set aside on this ground as void abinitio. Again due to the increase in the superannuation age the date of

getting pension is postponed by two more years. The family of the Petitioner would be deprived of the amount. This is clear case of vital change of

circumstances. The Petitioner had been given a cheque for Rs. 5,00,756.73 along with the impugned order retiring him from service. He had not

been paid the arrears of pay including the current D.A. as per Rules. He has not been paid Gratuity, Provident Fund and other retirement benefits.

He will return the retirement benefits given to him on his reinstatement of service or the same may be recovered from his arrears of salary for the

period of non-employment. He has every right to continue his service and he cannot be disturbed from his company leased accommodation.

Notice of motion was ordered and after the Respondents entered appearance through counsel and filed their counter, by consent, the main writ

petition itself was taken up for hearing.

In the counter the various allegations set out in the affidavit in support of the writ petition are denied. Transfers issued to the Petitioner were not

to cause personal inconvenience but were necessitated due to the administrative exigencies. Equally it is not correct to allege that administrative

powers were taken away from the Petitioner on 27.6.1997 to humiliate him. By the terms of the appointment the Petitioner was liable to be

transferred anywhere in India or abroad where the company has operation and business interest. All the Petitioner''s transfers and postings were

done to cause him to carry out specific responsibilities assigned to him from time to time in terms of his letter of appointment. No orders were

issued on 27.6.1997 to take away the administrative powers to handle functions assigned to him as per his posting orders.

He was never threatened in any manner that if he did not accept the voluntary retirement his services would be terminated and he would

transferred to insignificant position in far of places. His decision was volurary. Having applied for voluntary retirement under the scheme the

Petitioner should not have made strange allegations. At no earlier point of time did he alleged that his application was submitted due to pressure

from the company or its officers. It was only after his voluntary retirement application dated 30.4.1998 and issuance of communication of

acceptance of voluntary retirement vide letter dated 3.6.98 by the Company that for the first time on 18th July 1998 the Petitioner had chosen to

make a representation to the Chairman of IBP-Balmer Lawrie Group of Companies regarding alleged harassment, threat and victimisation and at

no stage did he ever make this sort of complaints during his service. No words of administrative jargons were ever used against him to indicate that

he would be transferred to insignificant position at far off places. Even in his letter seeking withdrawal of voluntary retirement he expressed regret

for the inconvenience caused to the Company and this would itself indicate that his application for voluntary retirement was entirely voluntary. Even

in the application the Petitioner had confirmed his understanding that the decision with regard to the acceptance/rejection of his application would

be solely at the discretion of the management which would be final and binding on him.

The application to be given for voluntary retirement under the scheme normally calls for giving three months notice to the management in the

case of a confirmed officer for availing voluntary retirement. However, nowhere the scheme mentioned three calender months notice. The

application form also did not expressly state the requirement to write down the notice period as the manner in which the notice period was

calculated was specifically given under Clause 5.2. of the Scheme and if at all any waiver was sought for, it was upon the competent authority

under the scheme to decide on the need to waive the notice period or not, which was final. The notice period ended on 29.7.98. The application

itself clearly showed that he had given the application on his free will after considering all the pros and cons without any compulsion. The allegations

that Respondents 2 and 3 forced him to give the application was totally wrong and misrepresenting the facts also. Vital change of circumstances

with reference to age of retirement alleged in paragraph-10 of the writ affidavit was not relevant. One of the conditions of the voluntary retirement

was that upon acceptance of the application for voluntary retirement, such acceptance shall be final and binding. The application of the Petitioner

for voluntary retirement on 30.4.98 was accepted by the Company on the same day and was communicated to the Petitioner by its letter dated

3.6.1998. A uniform pattern had been adopted for acceptance of applications received under the voluntary retirement scheme. The mere

enhancement of the age of superannuation from 58 to 60 would not entitle the Petitioner to withdraw his voluntary retirement implication and in any

event his pensionary benefits would be governed by the rules relating to pension. The Petitioner would be getting an ex gratia extra payment of Rs.

1,63,885.30/- at the time of his date of retirement namely 29.7.1998 under the voluntary retirement scheme. This extra amount would compensate

for non receipt of pension which would commence from 1.12.2001 instead of 1.12.1999. The various reasons like education of children, etc., now

alleged were available even at the time the Petitioner submitted his application for voluntary retirement. The Petitioner and his wife are well to do,

own ancestral properties and well connected. In accordance with the policy of the Company, it had already served three months notice on 30th

July 1998 terminating the lease of the quarters occupied by the Petitioner, terminated, the same with effect from 30th October 1998 to the owner

of the flat. The flat was to be vacated and handed or to the owner by 30th October 1998. The letter dated 3.6.1998 gave in detail all the benefits

which had accrued to the Petitioner on availing voluntary retirement. It was given to the Petitioner on 5.6.1998. The receipt of the letter was

subsequently confirmed to the deponent of the counter affidavit Mr. S. Krishna Moorthy by the Petitioner on 24.6.1998 when the Petitioner

approached him with a request to allow him to stay on the Company leasehold accommodation for a further period of two months beyond the

period of voluntary retirement scheme intimated to him vide letter dated 3.6.1998. In the presence of the deponent the Petitioner had represented

this request with G.M. (HR) during one of the visits of the G.M. (HR) on 6.7.1998 and as no decision was communicated to the deponent on

6.7.1998 he by inter office communication dated 9.7.1998 sought clarifications from G.M. (HR) the availability of approvals. Thus, application for

voluntary retirement having been accepted it would not be open to the Petitioner to withdraw the application for voluntary retirement. The

acceptance had become final. The allegations about victimisation, threats and harassments were false and misleading. The acceptance having

become final as per the Clause-4.2. of the voluntary retirement scheme, there was no going back. It is a practice in the company to personally

hand over career related letters particularly to the senior officers of the company and in keeping with such practice the Petitioner was served in

person the letter dated 3.6.1998. In all there were 131 cases in the Company where the voluntary retirement scheme had been accepted. In all

those cases communicating acceptance had been issued and they became final and there was no question of deviation or exemption arising. In

none of the earlier cases, an acknowledgment had been obtained when communications were issued on acceptance of voluntary retirement

application from any of those employees. It was fallacious and mischievous to state that the letter dated 3.6.1998 was an after thought and

fabricated subsequent to the issuance of the letter dated 27.7.1998. When the Petitioner received the letter dated 27.7.1998 under protest, he did

not mention about the non-receipt of the letter dated 3.6.1998 though he made a detailed endorsement after perusing the letter dated 27.7.1998.

The Petitioner was not entitled to withdraw the application and the non-payment of gratuity, PF was due to the lapse on the part of the Petitioner

alone. The scheme under Clause 5.2. Note(1) clearly stated that the date of receipt of the application by the controlling authority would determine

the dates from which the notice for voluntary retirement given by the employee should be reckoned and that the employee seeking voluntary

retirement under the scheme must give one/three months notice as per the terms of his appointment. The notice period expired on 29.7.98. The

argument of the Petitioner that acceptance or return of voluntary retirement application would arise only on the last date of three months period

specified in the voluntary retirement application was not maintainable. The averments in the affidavit and the actions of the Petitioner only showed

the unstable mind of a person who was unfit to carry out sensibly the assignments given to him in his capacity as a Senior Manager for the Man

Power Development function which had a role that needed handling of the Human Resourses with great care and sensibility for its development to

meet the various challenges facing fast changing business environment of the company in which he was expected to deliver results. The letter dated

27-7-1998 was only a consequential administrative clarification and confirmation of actions whereas the acceptance of voluntary retirement

approved by the competent authority which was communicated vide letter dated 3-6-98 and hence acceptance of voluntary retirement was made

by the Competent Authority. A person who had been a Senior Manager had posed to be unaware or ignorant of the procedures of the company

applicable with regard to the delegation of powers. The statements made by him clearly aimed at misleading the court on the procedures applicable

in such matters within the company. The delegation of powers to its executives was carried out by the Company by way of specific assignments of

delegation from time to time specifically to the functionaries depending on the managerial functions to be discharged by the holder of such functional

positions. The Petitioner had already retired from service voluntarily based on the scheme. There were no merits in the writ petition and the same

was liable to be dismissed.

With regard to the services of the acceptance letter dated 3-6-1998 and the conversation that took place between the Petitioner and the

officers of the Company during June and July 1998, the various officers of the Company have filed affidavits. It is not necessary to refer to each of

those affidavits. The sum and substance of the various affidavits is that the Company worked on the ethos of trust and transparency and the various

allegations made by the writ Petitioner were mis-conceived.

A reply affidavit has been filed by the writ Petitioner reiterating the allegations made in the main affidavit and disputing the allegation in the

various counter affidavits. As and when necessary the allegations in the various affidavits would be referred to.

Prof. R Krishnaswamy, the learned Counsel for the writ Petitioner took me through the affidavits, counters and documents filed in the

proceedings and submitted that the Petitioner was entitled to withdraw the application for voluntary retirement before the date fixed for retirement

under the application for voluntary retirement. According to the learned Counsel, the retirement was to take effect from 1-8-1998 and in as much

as the Petitioner withdrew the application for voluntary retirement on 15-7-1998, the company had no business to retire the Petitioner from service

purporting to act on the acceptance alleged to have been served on the Petitioner on 3-6-98. The learned Counsel further submitted that there was

no acceptance of the application for voluntary retirement and in any event no such communication dated 3-6-1998 was served on him at any time.

The learned Counsel cited a number of decisions in support of his submission that a person opting for voluntary retirement could withdraw the

same before the expiry of the notice period fixed under the scheme. The learned Counsel also highlighted the attitude of the Respondent company

in harassing and humiliating the Petitioner and pressurising him to submit an application for voluntary retirement. He further submitted that in view of

the changed circumstances, in that the age of superannuation was increased from 58 to 60 years after the Petitioner had submitted his voluntary

retirement application and this would postpone the Petitioner getting his pension by a period of two years and this was a vital change in

circumstances entitling the Petitioner to withdraw his application for voluntary retirement. On the question of the validity of the letter retiring the

Petitioner from service, the learned Counsel submitted that it had not been done by the Competent Authority and therefore it was void and

unsustainable.

Per contra Mr. Sanjay Mohan, learned Counsel appearing for the Respondents submitted that as per the scheme of the company relating to

voluntary retirement the decision of the Competent Authority once taken was final and there was no going back on the decision and the person

opting for voluntary retirement was not entitled to withdraw the application. Further, the voluntary retirement application was considered and

accepted by the Respondent company through its Competent Authority on 30-4-98 and the same was communicated to the Petitioner by letter

dated 3-6-98 served on him on 5-6-98 and once this was done, there was a finality to the whole episode and there was no question of the

Petitioner withdrawing the application for voluntary retirement. The learned Counsel vehemently denied the various allegations of pressure tactics

having been adopted on the Petitioner to compel him to submit his application for voluntary retirement. The learned Counsel denied the allegation

by the Petitioner that the letter dated 3-6-98 was a concocted document and had been brought into existence after 29-7-1998. The learned

Counsel also drew the attention of the court to the detailed endorsement made by the writ Petitioner in the impugned order dated 27-7-98 wherein

he had not mentioned about the non receipt of the acceptance letter dated 3-6-1998 particularly, when the impugned letter dated 27-7-1998

clearly referred to the letter dated 3-6-1998. The learned Counsel relied on a number of decisions in support of his stand.

Let us now notice the relevant dates and events. On 9-10-1992 a scheme for voluntary retirement was introduced in the Respondent

company. This was extended from time to time. On 25-3-1998 the Petitioner had written to the Managing Director on the subject of grievance

follow up. There is also a reference to grievance representation in writing dated 2-7-1977.

The complaint is against his administrative and functional superiors. According to this letter on 12-3-1998 Mr. S Krishnamoorthy and T.

Radhakrishnan had personally informed the Petitioner at Madras that he would be transferred to Calcutta by mid April 1998, if he did not comply

for company''s Voluntary retirement scheme by then. Mr Krishnamoorthy is the deponent of the counter affidavit running to 33 pages and Mr. T.

Radhakrishnan has filed a counter affidavit running to 6 pages. Mr Krishnamoorthy, is the General Manager of the Respondent company at

Chennai and Mr. Radhakrishnan is the head of the Human Resources Department of the Company and at the time of the filing of the counter

affidavit his designation was Executive Director, HR. The counter affidavits claim that the company works on the ethos of trust and transparency

on 29-8-95 there was an amendment of the Competent Authority for Voluntary Retirement Scheme Committee. On 30-4-1998 the Petitioner

applied in his own handwriting for voluntary retirement. As per the records produced the Petitioner''s application was sent by Fax from the

Respondents'' Madras Office to Calcutta Office. On the same date, the committee consisting of Head (Human Resources), General Manager

(Finance), Whole Time Director Incharge and Managing Director met and accepted the voluntary retirement of the Petitioner and the same was

sent for Vigilance Report as per procedure. It was decided to relieve the Petitioner from the services of the Company upon completion of 3

months from that date namely, 30-4-98. On 3-6-98 a letter under Ref. CPD/MO 236/VRS/98002 was sent informing the Petitioner their

acceptance of voluntary retirement along with enclosures namely form showing accumulation of provident fund and application for, gratuity. This

letter is disputed by the Petitioner. Copies of this letter are stated to have been marked to the various Heads and Officers in the Respondent

company. On 5-6-1998 the letter dated 3-6-98 was handed over to the Petitioner by the Assistant General Manager (P & A). This handing over

is disputed by the Petitioner. According to the Respondents as the Petitioner was employed in a senior position no acknowledgement was obtained

from him as was done in 130 similar cases. On 15-7-98 the Petitioner wrote to the General Manager (H.R) seeking to withdraw the voluntary

retirement application sent by Fax and courier. On 18-7-98 the Petitioner wrote a letter to the General Manager (H.R) reiterating that he had

withdrawn his voluntary retirement. No doubt, neither of these letters mentioned about threat, pressure tactics or administrative jargons alleged in

the affidavit in support of the writ petition. On 18-7-98 the Petitioner represented to the Chairman and Managing Director about his withdrawal of

voluntary retirement wherein for the first time allegations of submitting the application under threat are mentioned. On 27-7-1998 the General

Manager (H.R) writes to the Petitioner in reply to the letter dated 15-7-1998 reiterating that as already communicated in the letter dated 3-6-1998

the application for voluntary retirement was accepted and was finalised and he was to be relieved on 27-9-1998. A cheque bearing No. 058284

dated 27-7-1998 for Rs. 5,00,756.73 /- towards all dues except Provident Fund and Gratuity was enclosed to the letter. On 29-7-98 the

Petitioner was relieved from the services of the Company at close of work. On 1-8-1998 the Petitioner encashed the cheque given to him. On 10-

8-1998 the Petitioner files the present writ petition seeking to quash the relieving order. An interim direction not to disturb the Petitioner from the

quarters was granted. According to the Respondents the Petitioner met Mr. Radhakrishan on 6-9-98 with a request to stay in the lease

accommodation for an extended period and for use of the telephone. On 9-7-98 Memo Ref. General/8A/l 19 from the General Manager, Chennai

to the General Manager (HR) was issued regarding the Petitioner''s oral request for allowing him to stay for an additional two months beyond the

proposed date of voluntary retirement.

The learned Counsel for the Respondents also handed over a file containing the various letters relating to the writ petition.

16 (a). Before proceeding further let us examine the relevant provisions of the voluntary retirement scheme of the Company. The relevant Rules are

Rule-4 and Rule-5. Rule-4 runs as follows:

Rule- 4. ELIGIBILITY:

4.1. The Scheme shall be applicable only in respect of such employees as have attained the age of 40 years and have served the Company for a

minimum period of 10 years.

4.2. Notwithstanding the eligibility as aforesaid, it will be optional upon the Competent authority either to accept or reject any application for

voluntary retirement under this scheme and the decision of the Competent Authority in this respect shall be final.

People not satisfying the eligibility requirement could still apply and the competent authority could accept or reject such applications. The

competent authority is given a wide discretion in the matter of considering ineligible applications and his decision is final. Mr. Sanjay Mohan wants

to rely on Rule-4 and say that there is an implied if not expresses provision making the decisions final and the decision in 87 FJR Page 479

(Bharath Overseas Bank v. S.V. Raman) would apply. In my view Rule-4 will not apply to the writ Petitioner in view of Rule-5. Even otherwise,

merely because under Rule-4(1) it is stated that the decision of the competent authority is final, you cannot read into it in absence of provisions for

withdrawal. The decision in 87 FJR 479 (Bharath Overseas Bank v. S.V. Raman) will apply in that there is no provision in the present case also

prohibiting withdrawal of application for voluntary retirement and the candidate can indeed withdraw. As already stated in view of Rule-5, Rule-4

will not apply to the present case. Rule-5 runs as follows:

Rule-5. Regulation of the scheme:

Rule-5.1 An employee who has attained the age of 40 years and has served the Company for a minimum period of 10 years, may seek voluntary

retirement by a written request in prescribed form addressed through proper channel to the Competent Authority who may in his /their discretion

grant or not grant voluntary retirement for reasons to be recorded in writing.

Rule-5.2 An employee seeking voluntary retirement under the scheme must give one/three months notice, as per the terms of his appointment.

Note: 1. The date of receipt of application by the controlling authority would determine the date from which the notice for voluntary retirement

given by the employee should be reckoned.

Note: 2. An employee whose application for voluntary retirement under the Scheme is not accepted by the Competent Authority would continue to

be at liberty to invoke contractual provisions and resign from the service of the company in accordance with such provisions.

Rule-4 talks about eligibility and gives a wide discretion to the Competent Authority to consider the cases of even ineligible candidates and his

decision on this has been held to be final. Such a finality is not attached to the decision in Rule-5. Rule-5 applies to eligible candidates and it is not

the case of the management that the Petitioner is an ineligible candidate. The Petitioner is covered only by Rule-5. Even in the case of an eligible

candidate the competent Authority has a discretion to accept or not to accept, but for either he has to give reasons in writing. Rule-5. l does not

say that such a decision is final. Therefore, it cannot be held that the alleged decision of the Competent Authority on 3.6.1998 is final and that the

Petitioner could not go back on his application and seek to continue in service.

The next question is whether the letter dated 3.6.98 accepting the voluntary resignation on 30.4.1998 was communicated to the Petitioner.

There is no reference to this letter in the writ affidavit. It is referred to in the counter and the same is disputed in the reply affidavit.

The circumstances relied on by the Respondents to probablise that it had been handed over to the Petitioner are;

(i) the Petitioner mentioning to Mr. Radhakrishnan when he was at Chennai about his continuing to occupy the official residence for a couple of

months after the voluntary retirement taking in to effect and also about Telephone facility; and

(ii) From the reference to this letter dated 3.6.98 in the impugned order received by the Petitioner in person.

21 (a) We can immediately notice that the alleged conversation between the Petitioner and the local manager and Mr. Radhakrishnan was in June

and on 9th July 1998. During that time the Petitioner had not applied for withdrawal of the voluntary retirement. It was only on 15.7.1998 he

applied for withdrawal. It is not possible to infer that merely because the Petitioner had discussed with the local manager and Mr. Radhakrishnan

about his continuing to occupy the accommodation even after the date of his retirement it would follow that the letter dated 3.6.1998 had been

served on him. The Petitioner had proceeded on the assumption that he was to get out on 1.8.98. It is therefore not possible to impute knowledge

of the letter dated 3.6.1998 to the Petitioner because of the conversation alleged to have taken place between the Petitioner and the local manager

and Mr. Radhakrishnan during June and early July 1998.

The reference to this letter dated 3.6.1998 in the impugned order received by the Petitioner in person is sought to be put against him.

22(a). Admittedly, the Petitioner was agitated over his withdrawal application not being considered. That he was agitated would be evident from

the fact that while making the endorsement on 27.7.98 he gave the date 15.7.1998 below his signature. It is therefore that it cannot be said that he

had noticed that there was a reference to an earlier letter.

There are certain circumstances which can be put against the management and they cannot take credit that they work on the ethos of trust and

transparency. They are as follows;

i) The voluntary retirement application is given on 30.4.1998. It has to take effect after the expiry of three months notice. Incidentally, as to when it

expires is another vexed question. It will be discussed in due course. It is faxed at 14.20 hours on 30.4.1998 from Madras to the Head Office at

Calcutta. Why was such indecent haste to see the last of the Petitioner? His various grievances referred to in the affidavit and his letters appears to

have some semblance of truth and are justified.

(ii) There is some confusion as to whether the scheme was in force at all at the time when the Petitioner applied.

23(a). After orders were reserved in the matter, on going through the file, certain details came to light and the writ petition was posted for being

mentioned and clarifications were sought from the counsel for the management. What was a little disturbing was that on the date the writ Petitioner

applied for voluntary retirement the scheme was not in force. The counsel for the management was required to explain as to how when the scheme

was not in force, the application was at all taken up for consideration and it was also made to appear that the application was accepted on the very

day namely, 30.4.1998. The management filed an additional counter affidavit attempting to explain how on previous occasions though the period

had expired, voluntary retirement schemes were revived with retrospective effect and how the object of the company to reduce the manpower and

how the company''s intention to validate the scheme on a continuous basis without any break since its inception were sought to be achieved. In the

instant case on 6.5.1998 the General Manager (H.R) submitted to the board a note pointing out to the Board that while there had been increase in

the number of employees availing voluntary retirement under the existing scheme, a comprehensive rationalisation of the manpower had been

identified as key imperative and it was in the process of finalising a new voluntary retirement scheme designed to attract a pre-determined target

population of the employees and should be approaching the Board for necessary clearance. The sanction of the Board was sought in the meantime,

to extend the period of validity of the existing scheme with effect from 1.4.1998 so that those who were wanting to avail the scheme in the

interregnum should do so under the existing scheme and this requirement was ratified by the Board in its meeting held on 30.5.1998 by its

resolution wherein the period of the existing voluntary retirement scheme was extended for a further period of 12 months from 1.4.1998 up to

31.3.1998. Pausing here for a minute, it should be observed that there was no question of dealing with an existing voluntary retirement scheme. On

the date the general Manager (HR) put up the note the voluntary retirement scheme was not in force, having lost its validity with the expiry of

31.3.1998. What therefore stares at the face is that on the date the application was made by the writ Petitioner, there was no scheme in existence.

It is not spelt out in the counter that on 30.4.98 when the application was submitted by the writ Petitioner, there was in contemplation any intention

to give an extension to the scheme. The interregnum between 30.4.1998 and 6.5.1998 is still unexplained. The additional counter affidavit wants to

justify this omission by stating that in the past also there had been instances where the applications were received during the interregnum period of

pending-extension-of-the-Board-Resolution for extension of the scheme and on all such occasions the Board had resolved to extend the scheme

giving it retrospective effect. To repeat, in the instant case, there was no pending-extension-of-the-Board-Resolution on 30.4.98. It is therefore not

possible for the management to rationalise its conduct by any alleged past extensions, It is also to be noticed that there has not been a single

application for voluntary retirement withdrawn before the time, stipulated, in the application for the retirement was to take effect.

23 (b). Another aspect which was sought to be clarified by the management related to the time lag between 30.4.1998 and 3-6-1998. 30.4.1998

is the date according to the management on which the Committee decided to accept the application for voluntary retirement. 3.6.1998 is the date

on which the management claimed that the writ Petitioner was communicated with the decision of the management to accept the application for

voluntary retirement. According to the management the time was required to get Vigilance Clearance. This claim of the management to justify the

time lag is met by the additional reply affidavit filed by the writ Petitioner in the following manner. It is useful to extract the relevant paragraph

namely paragraph-11.

Para-11: I most respectfully submit that the Respondent''s averments in paragraph-6 of the additional counter affidavit about the time-element of

vigilance clearance is not quite clear especially since the concerned vigilance authorities were fresh in their Minds about the clearance given to me

by issuing a ""NO OBJECTION CERTIFICATE"" to apply for passport, as early as 15.5.98, in response to my request for the same on 6th April

1998.

23(c). The above would clearly show that all was not well with what the management has done in the case of the writ Petitioner.

23(d). There are two communications in the file produced by the management which may have a bearing on this. Both the communications are

produced hereunder for better appreciation of the factual position.

The first communication dated 5th June 1998 runs as follows:

BALMER LAWRIE & Company LTD.,

(A Government of India Enterprise)

From C H R D To G Ms/HO Ds

Ref. CPD/VRS 5th June 1998.

VOLUNTARY RETIREMENT SCHEME

This is further to our communication of even reference dated 3.7.1998.

The Board, in its meeting held on 30.5.98 has extended the validity of the existing Voluntary Retirement Scheme for a further period of 12 months

w.e.f. 1st April, 1998. This is for your information please.

(G.N. Mattoo)

Asst. General Manager (P) CHRD

CC: APD Heads.

What immediately strikes one is that it bears date 5.6.1998 and it talks about another communication dated 3.7.1998. Which of the dates is

correct? They could make a mistake about the date but could level criticism against the Petitioner in putting a wrong date while signing the

impugned order- when the Petitioner was agitated over his predicament when he was served with orders, when he had on 15.7.1998 given the

letter of withdrawal-the letter dated 5.6.1998 mentions about a Board Meeting on 30.5.98 in which the validity of the existing Voluntary

Retirement Scheme for a further period of 12 months w.e.f. 1st April 1998 is extended. The Petitioner submits his application for voluntary

retirement on 30.4.1998; if we go by this letter purporting to bear date 5.6.98 the scheme was not in force on the date the Petitioner made his

application. The Petitioner was not aware as otherwise he would not have and could not have applied for voluntary retirement. The Board extends

the validity of the scheme only on 30.5.1998, no doubt, with retrospective effect from 1.4.1998. We do not know whether this was done more to

ease out the Petitioner who was an unwanted man. From what is stated above the conclusion is inevitable that the Petitioner''s application for

voluntary retirement could not have been processed on 30.4.98 itself unless the Committee concerned had inkling of what was going to come that

there were plans to extend the validity of the Scheme and it was certain that it would be extended. There also appears to be some other motive in

picking on 3.6.1998. This is supplied by another communication available in the file itself. The whole of it is extracted below;

Balmer Lawrie & Company Ltd.,

From: CM (HR)

To: All APD Heads

Ref: CHRD/GD/98

Date: June 1,1998

Sub: Enhancement of the age of retirement for below Board level employees

(1) In pursuance to a decision by the Govt., of India to raise the retirement age of below board level employees of Central PSUS, the Board of

Directors of the Company in its meeting held on 30th May 1998 decided to adopt the decision in the Company with effect from 30th May 1998.

(2) The operative part of the decision is:'' Except if otherwise provided specifically every employee at below Board level in the Central Public

Enterprises whose age of retirement is currently 58 years shall now retire from service of the enterprise on the afternoon of the last date of the

month in which he/she attains the age of 60 (sixty) years. However, employees whose date of birth is the first of the month shall retire from service

on the afternoon of the last date of the preceding month on attaining the age of 60 (sixty) years.''

(3) This may be implemented in so far as employees under your charge with effect from the date indicated above.

(4) This would also entail necessary amendments to service rules/standing orders. Wherever, certified standing orders are in vogue, a joint appeal

for amendment can be given to the certifying officers incorporating the change if the age of superannuation is specified in the standing order.

Otherwise, a suitable administrative order would suffice. Service rules can be amended by an administrative order as this is not likely to be

perceived as adversely affecting the interests of workmen.

(5) We may please be kept appraised of actions) initiated.

(6) In the meantime cases due for superannuation may be dealt with in terms of the above decision.

(P. Radhakrishnan)

CC: MD /D (B) /D(C) /D(F) /ED (T)

CC: G Ms/HO Ds.

The Board decides on 30.5.1998 to raise the retirement age from 58 years to 60 years with effect from 30.5.1998. Let us now consider the

two letters together. Let us also assume that the date 3.7.98 in the body of the letter dated 5.6.98 is a mistake for 3.6.98. The pieces seem to be

falling in their places. The Jig Saw puzzle is getting solved. Right through what was troubling me was the Petitioner having given an application on

30.4.1998 for voluntary retirement-it is stated to have been processed on the same day and accepted on the same day- the communication of

acceptance was on 3.6.98- the gap of more than a month is not explained anywhere. Now we have the answer. The Petitioner had to be eased

out. Two decisions are taken in the Board Meeting on 30.5.1998, to extend the validity of voluntary retirement scheme by 12 months with effect

from 1.4.1998 to ensure that the Petitioner becomes eligible to avail voluntary retirement scheme and the age of retirement is raised with effect

from 30.5.1998 so that the Petitioner does not stumble on a reason to withdraw his voluntary retirement application. Unless it is stated that the

application had been accepted even on 30.4.1998 the Petitioner would be let off the hook. But the letter communicating the decision cannot be

given any anterior date for obvious reasons because the decisions are taken only on 30.5.1998 to extend the voluntary retirement scheme with

effect from 1.4.1998 and to raise the date of superannuation by two years with effect from 30.5.1998. Again the letter dated 5th June 1998 talks

of a communication of even reference CPD/VRS which tallies with the reference given in the letter stated to have been addressed to the Petitioner

on 3.6.1998. Now let us have a look at the papers stated to have been processed on 30.4.1998. The application as already noticed was faxed to

Calcutta at 14.20 hours on 30.4.98. The communication dated 30.4.98 runs as follows;

GM (H R)30.4.98

VRS application dated 30.4.98 of Shri TKM Thampi, Sr. Manager-Manpower Development (South) was received over fax on 30.4.98. The

application has been processed in line with Voluntary Retirement Scheme of the Company. The details have been worked out on the prescribed

format which is enclosed. Shri TKM Thampi has obtained a score of 0.30, which is within the permissible range for VRS acceptance. Therefore,

his application for separation on VRS may accordingly be accepted on the prescribed format.

(G.N. Mattoo)

All the members of the Committee to accept the voluntary retirement are available on tap and they say that since the voluntary retirement

scheme is applicable from 30.4.1998 which is within the acceptable range for VRS acceptance, this may be accepted. What an alacrity, what a

speed with which all the top brass of the company join hand to remove an unwanted element, a dead wood from the scene and this company

believes in the ethos of trust and transparency.

Indeed the letter dated 3.6.98 expressing acceptance of voluntary retirement could have come into existence on that date but it is extremely

doubtful whether it was served on the Petitioner as claimed by the management on 5.6.98. Conceding that it was served on the Petitioner on that

date does it mean that the fate of the Petitioner was sealed and that he could not validly withdraw it. Out of curiosity I had a look on the statement

showing details of persons under voluntary retirement scheme as on 30.4.98. Out of all the 131 employees in the list one P.S. Das (S. No. 46) and

the Petitioner TKM Thampi (S. No. 47) are the only two officers who had been given voluntary retirement in the year 1998. P.S. Das had given

the application on 2.3.98, it was accepted on 6.3.98, communicated on 8.3.98 and he was relieved on 8.4.98. His case was when Voluntary

Retirement Scheme was in force, not so in the case of the Petitioner. He gives the application on 30.4.98, it is accepted on 30.4.98, communicated

on 3.6.98 and he is relieved on 29.7.98 and the learned Counsel Mr. Sanjay Mohan wants us not to be surprised with the speed with which the

application was accepted.

The foregoing would make it abundantly clear that the Respondent company had not treated the Petitioner fairly and had made all efforts to

ensure his removal from service.

Let us now refer to the various authorities cited in the case. Firstly, we take the case of Raj Kumar Vs. Union of India (UOI), . This was relied

on by Mr. Sanjay Mohan, learned Counsel for the Respondents. The facts in the said case were as follows;

On 21.8.1964 the officer concerned wrote a letter to the Chief Minister setting out his grievance and requesting him to accept his resignation

separately sent on 30.8.1964. Resignation letter was sent to the Chief Secretary requesting him to forward to the Government of India. On

31.10.1964 the Government of India accepted the registration and requested the Chief Secretary to the State Government to intimate the date on

which the officer was relieved of his duty so that a formal notification could be issued in that behalf. On 27.11.64 the officer addressed a letter to

the Secretary, Ministry of Home Affairs withdrawing his resignation. On the same day he wrote a letter to the State Chief Secretary that his

withdrawal of his resignation might be recommended. On 29.3.1965 the order accepting resignation was passed and the officer was asked to hand

over the charge to the Additional Collector. The Petitioner approached the High Court. The High Court rejected his case holding that the

resignation became effective on the date it was accepted by the Government of India. The subsequent withdrawal of the application was

ineffective. On Special Leave being granted by the High Court the case went to the Supreme Court. It was contended that so long as acceptance

was not communicated to him, the officer concerned could withdraw his letter of resignation. The Supreme Court held that after the resignation

was accepted the officer had no locus penitential to withdraw his letter of resignation. The Supreme Court further held that the decision in State of

Punjab Vs. Amar Singh Harika, which was a case of dismissal and the order being kept on the file of the authority without being communicated to

the officer or otherwise publishing it, was not applicable to the case before the Supreme Court. The Supreme Court further observed that the

principle laid down in that case that till the order of dismissal was intimated it would not be effective, would not apply to the facts of the case

before the Supreme Court and also observed that there was no rule framed under Article 309 of the Constitution of India about when the

resignation became effective, nor any circular or administrative instruction in vogue that resignation of an officer became effective after it was

accepted and the officer was relieved of his duties and not till then was not a rule under Article 309 of the Constitution of India. As it was not an

order of dismissal Article 311 also would not apply. This case will not apply to the facts of the present case for the simple reason that no future

date was mentioned in the application for resignation.

The next case is Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, . The facts were as follows;

On 7.5.1977 Justice Satish Chandra wrote to the President of India intimating his resignation from the office of High Court with effect from

1.8.1977. On 15.7.1977 the learned Judge revoked his earlier intimation and from 16.7.1977 he commenced deciding matters. An advocate filed

a writ petition contending that Justice Satish Chandra''s resignation had been duly communicated to the President in accordance with Article

217(1) Proviso (a) of the Constitution of India, that it was final and irrevocable and that his continuation was usurpation of office. The High Court

accepted the case of the advocate. However, the Supreme Court on appeal set aside the decision of the High Court holding that resigning office

necessarily involved relinquishment of office which implies cessation or termination or cutting as under from the office. A complete and effective act

of resigning office was one which severed the link of the resignor with his office and terminated its tenure. In the context of Article 217(1) it had

assumed the character of a decisive test because the expression ""resign his office"" occurred in a proviso which expressed or qualified the

substantive clause fixing the tenure of a Judge up to the age of 62 years. It was further reiterated that in the absence of a legal, contractual or

constitutional bar an intimation in writing sent to the appropriate authorities by an incumbent of his intention or proposal to resign his office/post

from a future specified date could be withdrawn by him at any time before it became effective, that is before it effects termination of the tenure of

the office/post/employment. The Supreme Court further held that this general rule applied equally to Government servants and constitutional

functionaries.

It has been held in AIR India Vs. Nergesh Meerza and Others, that there should not be arbitrariness and hostile discrimination in

Government''s approach to its employees.

The next case is Balram Gupta v. Union of India AIR 1987 SC 2374 : 1987 (2) LLJ 541 : 1987 Suppl. SCC 228 : 1987 (5) ATC 246. The

case dealt with Articles 309 and 311 of the Constitution of India and the Central Civil Services (Pension) Rules, 1972. On 24.12.1980 the official

concerned sent his letter of resignation stating that the notice period to be treated with effect from 1.1.1981 and to take effect from 31.3.1981. On

20.1.1981 an order was passed accepting the tetter of resignation and allowing the official to retire voluntarily with effect from 31.3.1981 A.N.

Rule 48-A(4) of the Rules provided that a Government Servant shall be precluded from withdrawing his notice except with the specific approval of

such authority. The Supreme Court observed that the normal rule which prevailed in certain cases that a person could withdraw his resignation

before it became effective, will not apply in full force in the instant case since the rule required the approval of the authority. The Supreme Court

further observed that ""what is important in this connection to be borne in mind is not what prompted the desire for withdrawl....but what prompted

the Government from withholding the withdrawl."" The dissolution would be brought about only on the date communicated, that is 31.3.1981; up to

that the Appellant was and is a Government Servant. There is no unilateral termination of the same prior there to. He is at liberty and entitled

independently without Sub-rule 4 of Rule 48-A of the Central Civil Services (Pension) Rules, 1972 as a Government Servant to withdraw his

notice of voluntary retirement. In this respect it stands at par with letter of resignation. In the course of the judgment the Supreme Court referred to

the judgment in Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, and AIR India etc. etc. v. Nargesh Meerza and Ors. etc.

etc. 1981 (2) LLJ 314 and distinguished Raj Kumar v. Union of India 1970 (1) LLJ 13 relied on by Mr. Sanjay Mohan observing that ""there the

court reiterated that till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public

servant concerned has locus poenitential. But in the instant case undue delay in intimating to the public servant concerned the action taken on the

letter of resignation may justify an interference that resignation had not been accepted. But in the facts of the instant case the resignation from the

Government servant was to take effect at a subsequent date prospectively and the withdrawl was long before that date. Therefore, the Appellant,

in our opinion, had locus"". So far as Rule 48-A(4) was concerned the Supreme Court did not express any opinion but stopped with saying ""if

properly exercised the power of the Government may be a salutary rule. Approval, however, is not ipse dixit of the approving authority. The

approving authority who is the statutory authority must act reasonably and rationally. The only reason put forward here is that the Appellant had

not indicated his reasons for withdrawal. This in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the Appellant

had a second look at the matter. This is not an unreasonable reason"". It will be worthwhile to reproduce paragraph-13 of the said judgment and

the same runs as follows:

In the modern and uncertain age it is difficult to arrange one''s future with any amount of certainty, certain amount of flexibility is required and if

such flexibility does not jeopardise Government or administration, administration should be graceful enough to respond and to acknowledge the

flexibility of human mind, attitude and allow the Appellant to withdraw his letter of retirements 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.

The next decision is K.L. Manisekhar v. The Osmania University and Anr. 1989 Lab. I.C. 1296. The facts of the case were as under:

On 19.6.1986 an application for voluntary retirement to take effect from 1.10.86 .treating the letter as three months notice with effect from 1-6-86

was submitted. The applicant was informed by the Deputy Registrar (Administration) that the Vice Chancellor had accorded permission. On

30.8.1986 the letter withdrawing the application was given citing the revision in pay scales to be implemented with effect from 1.7.86 as the

reason, in which event the applicant would be losing every month Rs. 414/- if he was to retire and if allowed to continue for another six months this

could be averted. On 22.9.86 the University Syndicate considered both the voluntary retirement application and the withdrawal application and

decided to ratify. On 29.9.1986 the Registrar wrote to the applicant about ratification and he was also retired from service on 1.10.1986. On

30.3.1988 the writ petition was filed and it was held by the Supreme Court that the reasons given in the letter for withdrawal were convincing and

the Respondent University would not have suffered any inconvenience by permitting the Petitioner to withdraw his application and continue in

service as no alternative arrangements were made by that time for filling up the vacancy of the Petitioner. The Supreme Court referred to the earlier

decisions in Balram Gupta Vs. Union of India (UOI) and Anr, case and held that the instant case was on all fours with Balram Gupta''s case. The

Supreme Court further observed that

indeed no one justifiable reason has been shown by the University for withholding the withdrawal by the Petitioner from voluntary retirement. All

that is said is that the Vice Chancellor had already taken a decision, which was conveyed on 15.7.86 permitting the Petitioner to voluntarily retire

from service. Even if the Vice Chancellor had tentatively taken a decision subject to the ratification by the Syndicate which is the competent

authority the matter should have been viewed in the right perspective when the Syndicate had occasion to consider the matter on 22.9.86. There is

no ground as to why the Petitioner''s application dated 30.8.86 seeking withdrawal of the earlier application is not acceptable. This is a case as

observed by the Supreme Court in the aforementioned case where one cannot find fault with the reasons advanced by the Petitioner. The

University was unable to point out one single justifying reason for withholding permission to the Petitioner for his letter dated 30.8.86.

The next case is J.K. Cotton Spinning and Weaving Mills Company Ltd. Vs. State of U.P. and Others, relied on by Mr. Sanjay Mohan. In

that case it was held that where a contract of service was determined on the employee exercising his right to quit, such termination could not be

said to be at the instance of the employer to fall within the first part of the definition of retrenchment in Section 2(s) of the State Act (U.P. Industrial

Disputes Act, 1947. In that case on 1.11.1970 the employee voluntarily submitted his resignation. Two days hence another letter was sent to the

manager confirming his resignation and asking for somebody to be deputed to take charge and learn the work. There was a reply from the

management to the employee to hand over charge to another person and to get payment in full and final settlement from the Mill''s pay office. On

15.11.70 the employee handed over charge, amount due up to 16.11.70 was worked out and on 22.11.1970 payment was made. In February

1971 service gratuity was paid. The employee thereafter sought an industrial dispute to be raised u/s 4(k) of the said Act. This was initially rejected

but subsequently referred. The writ petition filed by the management was dismissed on 7.9.1981. On 25.1.1984 the Labour Court gave an award

holding that the resignation was not voluntary and therefore his services had been wrongly terminated with effect from 15.11.1970. In the writ

petition the High Court held that the resignation had been voluntarily given without any threat or coercion. The claim for overtime wages was an

after thought. However, considering the definition of retrenchment in Section 2(s) of the U.P. Act the High Court held that the termination was

retrenchment, and that the management had failed to observe the requirements of Section 6(N) of the Act and the termination was invalid. The

High Court opined that there was also the act of the employer in that the terminatiion became effective only after the employer accepted the

resignation, this act of employer put a seal to the matter and brought about cessation of the relationship of the employer and the workman. It was

therefore a case of retrenchment and the matter was remitted setting aside the order of reinstatement by the Labour Court to find out whether there

was any infringement of Section 6(N) of the U.P. Act. On the matter being taken to the Supreme Court, the Supreme Court held that in the

relevant provisions of the U.P. Act voluntary retirement and retirement by superannuation were excluded from the purview of retrenchment. The

Standing Orders of the company provided for resignation on giving a month''s notice and in the instant case notice was given and accepted and

there was no withdrawal before acceptance. There was cessation of relationship of employer and employee. Merely because the employer had

accepted the employee''s resignation, it could not be said that the employer had brought about to the end the relationship to become retrenchment.

The service was terminated at the behest of the employee and that there was no retrenchment. The Supreme Court further observed that cases turn

on their own special facts. In my view this case will not apply to the facts of the present case. The Supreme Court on the facts held that the

employee giving his resignation followed by acceptance by the employer would not amount to retrenchment. For reaching that conclusion the

Supreme Court observed that the acceptance of the resignation brought about cessation of relationship between the two. We would be stretching

the language if we apply the ratio to the instant case.

In Punjab National Bank Vs. P.K. Mittal, the Supreme Court dealt with the Punjab National Bank (Officers) Service Regulations, 1979. The

regulation which came up for consideration was Regulation 20(2). The officer concerned submitted his resignation to take effect from a future date

after giving requisite notice of 3 months. The bank accepted the resignation and relieved the officer before expiry of notice period. The officer in

the meantime withdrew the resignation before the effective date. No acceptance was necessary unless rules so provided. Therefore, acceptance of

resignation before the expiry of the notice period amounted to termination and it was further held that notice period could not be waived by the

bank on its own unless an employee so required. It was held by the Supreme Court as follows:

An employer cannot have power to accept resignation with immediate effect eventhough the notice is only of a proposed future resignation. It

cannot be accepted that eventhough an employee might express a desire to resign from a future date, the resignation can be accepted, even without

his wishes, from an earlier date. If such power is conceded to employer, it would not be acceptance of resignation that would amount to forcing a

date of termination on the employee other than the one he is entitled to choose under the regulation. Employer cannot terminate the services of an

employee under Clause (2) of Regulation 20 as it is the employee who effects the termination of service. Clause (2) of Regulation 20 and its

proviso are intended not only for the protection of the bank but also for the protection of the employee. It gives the employee a period of

adjustment and rethinking; it also enables the bank to have time to arrange its affairs, with the liberty, in appropriate cases, to accept resignation of

an employee even without the requisite notice if he so desires. The proviso should not be interpreted as enabling a bank to thrust a resignation on

an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation. In the

present case the resignation would have become effective only on or about 21st April 1986 or on 30th June 1986 and not on an earlier date. The

action of the bank in accepting the resignation with effect from an earlier date was without jurisdiction."" ""Before the resignation becomes effective

the employee can withdraw his resignation. In that case the resignation stands withdrawn and the employee continues to be in the service of the

bank. No specific provision is necessary for permitting the employee to withdraw the resignation. On general principles the employee can withdraw

his resignation.

This is strongly relied on by the learned Counsel for the Petitioner. The earlier decisions of the Supreme Court in Raj Kumar v. Union of India

1970 (1) LLJ 13, Union of India v. Gopal Chandra Misra 1978 (1) LLJ 492 and Balram Gupta v. Union of India 1987 (2) LLJ 541 were referred

to and considered by the Supreme Court.

It has been held in a Kerala decision in T.P. Sivadas v. Kerala State Handloom Development Corporation and Ors. 1991 FJR (79) 202 that

resignation must be accepted by an employer to become effective. If the resignation is to take effect from a future date it remains inchoate till the

specified date. The employee has a right to withdraw resignation before that date. The acceptance by the employer of the withdrawn resignation

was held to be illegal.

Moti Ram Vs. Param Dev and another, . This case is relied on by Mr. Sanjay Mohan. The case arose in an election petition. A person holding

the post of Chairman an office of profit in H.P. Khadi and Village Industries Board sent his resignation and he ceased to be in employment. He

sent his resignation and it was an unilateral act and did not require to be accepted to be effective. While dealing with such an election petition the

Supreme Court talks about resignation in contracts of employment. The relevant paragraphs 16,17 and 18 of the said judgment are extracted

below:

Paragraph-16 runs as follows:

As pointed out by this Court, ''resignation'' means the spontaneous relinquishment of one''s own right and in relation to an office, it connotes the act

of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation

there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of

relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions

governing it. (See: Union of India v. Gopal Chandra Misra). If the act of relinquishment is of inilateral character, it comes into effect when such act

indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is

communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is

intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect

from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the

communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to

be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the

relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or

bilateral in character would depend upon the nature of the office and the conditions governing it.

Paragraph-17 runs as follows:

Under the Constitution of India there are various offices which can be relinquished by unilateral act of the holder of the office and acceptance of

resignation is not required, e.g., President (Article 56 (a)), Vice-President (Article 67 (a)), Deputy Chairman of Rajya Sabha (Article 90 (b)),

Speaker and Deputy Speaker of Lok Sabha (Article 94 (b)), Judge of the Supreme Court (Article 124 (2) (a)), Judge of a High Court (Article

217(1) (a)). As regards member of either House of Parliament or a member of a House of Legislature of a State, originally, the position was that

he could resign his office by uniteral act and the acceptance of resignation was not required. The requirement of acceptance of such resignation

was introduced in Articles 101(3) (b) and 190(3)(b) by the Constitution (Thirty-third Amendment) Act, 1974. Similarly in Company Law, a

Director of a Company is entitled to relinquish his office at anytime he pleases by proper notice to the company and acceptance of the resignation

is not required. (See: G Iossop V. Glossop and Halsbury''s Laws of England, 4th Ed., vol. 7, p. 316, para 536)

Paragraph 18 runs as follows:

A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an

employee is effective only on acceptance of the same by the employer. In so far as Government employees are concerned, there are specific

provisions in the service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar v. Union of India, it has been

held:

�But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand 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.

Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance the public servant concerned has

locus poenitential but not thereafter.

In that case no future date was fixed. This case will not apply.

In Bharat Overseas Bank v. S.V. Raman 1994 87 FJR 479 request was made by an employee seeking voluntary retirement. It was withdrawn

before it became effective. Service Rules of the Bank provided that employee would become eliglible to seek voluntary retirement only on attaining

the age of 55 years or after the completion of 30 years of service. Employee not completing either on the date he applied for voluntary retirement

or on the date Bank took its decision to accept employee''s request for voluntary retirement. There was no specific provision in service rules

preventing withdrawal of letter seeking voluntary retirement. It was held by a Bench of this Court that the employee was entitled to withdraw his

letter of voluntary retirement before it had become effective.

In Balbir Singh Negi Vs. Union of India (UOI) and Others, the Supreme Court considered the question as to the effect on withdrawal

application if during the pendency of the proceedings the person concerned reached the age of superannuation. The Supreme Court dismissed the

writ petition as the writ had become futile. However, the Supreme Court recognised the right of individual to withdraw the application for voluntary

retirement before the effective date though in the meantime the authority concerned had accepted the retirement proposal. Balram Gupta Vs. Union

of India (UOI) and Anr, was also referred to by the Supreme Court.

The next case is Power Finance Corporation Ltd. Vs. Pramod Kumar Bhatia, This case was relied on by Mr. Sanjay Mohan. The Respondent

in that case applied for voluntary retirement. It was accepted on 20.12.1994 by the Appellant before the Supreme Court subject to the clearance

of outstanding dues. It was to be given effect to from 31.12.1994. On 6.1.1995 the Respondent sought deduction of a particular amount from

outstanding dues and also requested that formal relieving order with effect from 31.12.1994 might also be handed over. The Appellant corporation

found that voluntary retirement scheme was not applicable and withdrew the scheme. The High Court held that the order dated 20.12.1994

created a vested right. However, the Supreme Court held no; it was only conditional, that it did not come into effect and no vested right was

created in favour of the Respondent employee. Unless the employee was relieved of his duty after the acceptance of the offer of voluntary

retirement or resignation jural relationship of the employee and employer did not come to an end. Before the conditions were complied with the

scheme had been withdrawn. Mr. Sanjay Mohan wanted to argue that once the resignation was accepted nothing further remained. This argument

overlooks that that voluntary retirement was to take effect only from a future date.

In State of Haryana and Others Vs. Ram Kumar Mann, the Respondent wanted to contest election as M.L.A. and resigned his post as Small

Pox Supervisor in the Health Department on 23.4.1982. On 18.5.1982 application for resignation was accepted. On 21.5.1982 the application

for withdrawing the resignation was filed and the same was dismissed. Consequently, the Respondent filed the writ petition. The High Court taking

into consideration the fact that three similarly placed persons were allowed to withdraw their resignation and were appointed to their respective

posts, invoked Article 14 of the Constitution and the State was directed to reinstate the writ Petitioner. However, the Supreme Court set aside the

order holding that the moment the resignation was accepted that was the end of the matter and the relationship of employer and employee ceased

and there was no enforceable right after that date. It is to be noticed here that no future date was fixed in that case.

In Hindustan Machines Tools Ltd. and Another Vs. M.S. Kang/P.N. Kashyap, differential treatment was given to voluntary retirees under

different schemes. It was upheld by the Supreme Court. I do not think that this case has any application to the facts of the present case.

In Jeethram v. HP. State Handicrafts and Handloom Corporation Ltd. 1997 Lab. I.C. 87 relied on by the learned Counsel for the

Respondents, there was a specific condition in the voluntary retirement scheme that option once exercised would be final and employee would

have no right to withdraw the same. The employee sought to withdraw his voluntary retirement and the refusal by the Corporation to grant

permission was held by a Division Bench of the Himachal Pradesh High Court to be proper. The paragraphs relevant are paragraphs 10,11 and

13.

Paragraph-10 runs as follows:

A perusal of Annexure R-2, vide which the Voluntary Retirement Scheme was made applicable to the employees of the Respondent-corporation

and options for voluntary retirement under the Scheme were invited, there is a specific condition that the option once exercised would be final and

the employee having once exercised the option, would have no right to withdraw the same. In view of such specific condition contained in the

Scheme it was not open to the Petitioner to withdraw his option for voluntary retirement at a subsequent stage. Therefore, the Respondent-

corporation was justified in rejecting the request made by the Petitioner vide his letter dated 17.5.1993 (Annexure p-4), withdrawing his earlier

option seeking pre-mature retirement from service.

Paragraph-11 runs as follows:

In view of our decision that the Voluntary Retirement Scheme is applicable to the employees of the Respondent-corporation and that the Petitioner

having opted for voluntary retirement under the Scheme, is not entitled to withdraw such an option, the other point raised by the learned Counsel

for the Petitioner that the Petitioner is governed by Bye-laws framed by the Respondent-corporation with regard to his conditions of service loses

its force and we need not go into the said question.

Paragraph-13 runs as follows:

The learned Counsel for the Petitioner has lastly contended that under the Voluntary Retirement Scheme the option seeking voluntary retirement

was required to be sent to the Managing Director of the Respondent-corporation. In the present case, the option seeking voluntary retirement

made by the Petitioner on 30.8.1993 was addressed to the Manager of Bhawanagar Emporium, Kinnaur District. According to the learned

Counsel, since the option seeking voluntary retirement was sent to an officer who was not competent to accept the request for retirement, the

action of the Respondent-corporation in accepting such request and ordering the voluntary retirement of the Petitioner from service with effect from

15.11.1994 is illegal. Undisputedly, the communicatiion dated 30.8.1993 (Annexure p-1) was addressed by the Petitioner to the Manager of

Bhawanagar Emporium, District Minnaur. However, it is significant to note that the request for voluntary retirement of the Petitioner was accepted

by the competent authority, i.e., Managing Director of the Respondent-corporation. Since the request for voluntary retirement was addressed to an

officer other than the competent authority, loses its significance and no fault can be found in the office order dated 24.1.1994."" (Annexure p-2).

In that case as already noticed there was a specific condition in the Scheme that option once exercised would be final and the employee would

have no right to withdraw the same. We have already considered this aspect while examine the scheme in the present case.

In J.N. Srivaatava v. Union of India and Anr. 1998 SCC (L&S) 1251 notice for voluntary retirement to take effect from 31.1.1990 was given

on 3.10.1989. On 2.11.1989 it was accepted by the Government. On 11.12.1989 withdrawal application was made. It was held that it was

permissible as it was made before 31.1.90. It was further held even if the notice had been accepted by the authorities within the time fixed, before

the date of retirement was reached, the employee had locus poenitential to withdraw the proposal for voluntary retirement. The Supreme Court

followed the earlier judgment in Balram Gupta Vs. Union of India (UOI) and Anr, .

The last of the decisions is an unreported judgment of a Bench of the Court in D. Jayakodi Jacob v. The Presiding Officer, Labour Court and

Anr. in W.A. No. 992 of 1996 dated 14.7.1998. This case will not apply to the facts of the present case, because the decision had proceeded on

the ground of laches and acceptance of retirement benefits by the employee.

The next question is whether the termination of service of the Petitioner to take effect from 29.7.1998 is valid. It is the contention on behalf of

the Respondents that the rules mentioned only ''month'' and not ''calender month'' and therefore counting three months from 30.4.1998 the date of

application of the Petitioner for voluntary retirement, the termination of his services to take effect from 29.7.98 was valid. A look at the application

for voluntary retirement clearly shows that it would take effect after the expiry of three months notice as per the terms of contract. As per Section

3(35) of the General Clauses Act, ''month'' shall mean a month reckoned according to the British calender. It has been in a number of decisions

held that the word month should be computed unless the context otherwise required only according to the English Calender. It is unnecessary to

quote chapter and verse. If the period starts at the end of a calender month which contains more days than the next succeeding month, the period

expires at the end of the latter month. In the view I am taking that the termination of the services of the Petitioner without considering the

application for withdrawal is improper, it is wholly academic to go into the other questions. The Petitioner had every right to withdraw the

application. The decisions in Balram Gupta''s Case and J.N. Srivastava''s Case would apply. Even the Bharat Overseas Bank case relied on by the

learned Counsel for the Respondents only supports the case of the Petitioner, as we have found that there is no specific provision in the service

rules preventing withdrawal of the letter seeking voluntary retirement. It has already been held that Rule-4 does not apply to the facts of the present

case and it is only Rule-5. the decision in Balbir Singh''s case will also support the stand of the writ Petitioner.

It is also not necessary to go into the other questions whether the proper authority had accepted the voluntary retirement. For the reasons

stated above the writ Petitioner is entitled to succeed and Rule Nisi will issue as prayed for. Consequently, W.M.P. Nos. 17814, 17815 and

24964 of 1998 are closed. No costs.

After the orders are pronounced, the learned Counsel for the Respondent/management requests for stay of the operation of the order for two

weeks for taking the matter by way of appeal. The request is granted.