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SHRI KANT ARYA versus M/S NEW VICTORIA MILLS & OTHERS

High Court of Judicature at Allahabad

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Shri Kant Arya v. M/s New Victoria Mills & others - WRIT - C No. 16587 of 2004 [2005] RD-AH 2026 (22 August 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                    Court No.38

Civil Misc. Writ Petition No.   16587 of 2004

Shri Kant Arya       vs.      M/s New Victoria Mills and others

Hon'ble Vineet Saran, J

The petitioner was initially appointed in the year 1985 as Supervisor Maintenance on probation in Atherton Mills of the National Textile Corporation. Thereafter vide order dated 27.7.1991 he was transferred to New Victoria Mills of the National Textile Corporation at Kanpur. He joined at New Victoria Mills, Kanpur on 29.7.1991. In the year 2001 some dispute arose with regard to his provident fund account. According to the petitioner, his employer (respondents) had wrongly got an account opened in the name of Shri Kant Misra instead of the petitioner's actual name which was Shri Kant Arya. The provident fund amount of the petitioner was thus deposited in a wrong name.

However, before the said dispute could be resolved, the Respondent-Mill came up with a Modified Voluntary Retirement Scheme. By his offer dated 12.7.2002 the petitioner opted for voluntary retirement under the said scheme but subject to the condition that his entire dues (which included the provident fund dues) may be paid along with his said resignation letter. No formal order accepting the offer of the petitioner had been passed by the respondents. In the meantime, on 3.3.2003, the petitioner wrote to the Respondent-Mill that since his provident fund account had not been regularized and the amounts had not been deposited by the employer in his account, and further that after acceptance of his resignation, the realization of the said amount would become impossible, the petitioner wrote that his conditional offer under the Modified Voluntary Retirement Scheme may remain in abeyance. A further request was made by the same letter that his provident fund account may be regularized within 30 days. The respondents again did not thereafter send any reply/communication to the petitioner. However, vide letter/order dated 28/31.5.2003 passed by Respondent no.1 M/s New Victoria Mills, the cut off date for the acceptance of the resignation/offer of the petitioner and three other employees under the Modified voluntary Retirement Scheme was given as 1.6.2003. Then on 2.6.2003 the Respondent no.1 informed that due to certain unavoidable circumstances the cut off date fixed as 1.6.2003 had been cancelled and a new cut off date would be informed. All along, the petitioner was permitted to continue to work. Before the new cut off date could be announced, on 1.7.2003 the petitioner wrote to the Respondent-Mill that his offer for resignation under the Modified Voluntary Retirement Scheme may be treated as cancelled. It is not disputed that till such date the condition laid down by the petitioner in his offer dated 12.7.2002 and 3.3.2003 of regularizing his provident fund account had not been fulfilled by the respondents. However, no orders had also been passed on any of the communications of the petitioner i.e. 12.7.2002; 3.3.2003 and 1.7.2003. Then on 14.7.2003, the Respondent-Mill passed a fresh order, stating that the cut off date for acceptance of the offer of the petitioner and six other employees for resignation under the Modified Voluntary Retirement Scheme would be 16.7.2003.

Aggrieved by the said order the petitioner has filed this writ petition with the prayer that after quashing the order dated 14.7.2003, a direction be issued to the Respondents  to allow the petitioner to join his duties on the post of Supervisor Weaving Maintenance and pay him all emoluments for which he is entitled; and also to pay him back wages since 16.7.2003, and further permit the petitioner to work on such post till the age of his superannuation and thereafter pay him his retiral benefits.

I have heard Sri P.K.Tripathi, learned counsel for the petitioner and Sri J.N.Tiwari, learned Senior counsel assisted by Sri Gopal Misra, learned counsel appearing on behalf of the respondents and have perused the record. Counter and rejoinder affidavits have been exchanged between the parties and with their consent this writ petition is being disposed of at the admission stage itself.

The facts as narrated above are not disputed by the parties. The contention of Sri Tripathi, learned counsel for the petitioner, is that since the offer made by the petitioner was always a conditional offer which had not been fulfilled by the respondents, and the said offer had been withdrawn by the petitioner prior to the final cut off date and also prior to the fulfillment of the conditions made in that offer, hence the inclusion of the name of the petitioner, without passing any order on the conditional offer made by the petitioner for accepting his offer/resignation under the Modified Voluntary Retirement Scheme of the Mill, is totally unjustified and liable to be quashed. In support of his contention that the acceptance of the offer/resignation of the petitioner in such circumstances was wrong and illegal, learned counsel for the petitioner has relied upon the decision of the Apex Court in the case of Shambhu Murari Sinha v. Project and Development India Ltd. and another 2002 AIR SCW 1165; Bank of India and others vs. O.P. Swaranakar 2003 AIR SCW 313; and J.N.Srivastava Vs. Union of India AIR 1999 S.C.1571

Sri J.N.Tiwari, learned Senior counsel appearing for the respondents, has, however, submitted that once the offer of voluntary retirement made by the respondent-Mill had been accepted by the petitioner, the same could not be withdrawn specially when the initial cut off date of 1.6.2003 had already been announced, which was prior to the final letter of withdrawal of his resignation submitted by the petitioner on 1.7.2003. In support of his said submissions, the respondents have relied upon the decision of the Apex Court rendered in the following cases: A.K.Bindal vs. Union of India 2003 F.L.R. 1;  Vice Chairman and Managing director, APSIDC Ltd. and another vs. R.Varaprasad and others 2003 (98) FLR 104 = 2003 AIR SCW 2989; and State Bank of Patiala vs. Romesh  Chander Kanoji and others 2004 SCC (L&S) 428. Sri Tiwari has further submitted that since by notification of the Central Government dated 9.3.2004 issued during the pendency of this writ petition, the respondent New Victoria Mills, Kanpur has been closed down, the petitioner cannot now be reinstated in service.

Having heard learned counsel for the parties and considering the facts and circumstances of this case, in my view this writ petition deserves to be allowed and the impugned order dated 14.7.2003 passed by the respondent M/s New Victoria Mills, Kanpur is liable to be quashed only in so far as it relates to the case of the petitioner, and that the petitioner would be entitled to all consequential benefits.

From the record it is not clear that at any point of time the petitioner had ever given an unconditional offer of resignation under the Modified Voluntary Retirement Scheme of the respondent-mill. His offer/resignation was only on the condition that his entire dues, which included the provident fund dues, should first be cleared and paid to him. From the record it is also clear that till the date of acceptance of his resignation (i.e. either 28/31.5.2003 or 14.7.2003) the said dues of the petitioner had not been settled by the respondents. Admittedly the petitioner was allowed to continue to work till 14.7.2003, when his offer of resignation is said to have been accepted by the respondent-mill. It is also established from the record that prior to the said date, on 1.7.2003, the petitioner had already withdrawn his offer of resignation.

The Apex Court in the case of Bank of India (supra) has held that such voluntary retirement schemes are only an invitation to offer, and the application filed by the employee under the said scheme could then be termed as an offer which the employee can withdraw before its acceptance. The decisions of the Supreme Court as relied upon by the learned counsel for the respondents are distinguishable on facts.

In A.K.Bindal (supra) the Supreme Court was dealing with a case where, the employee had accepted the voluntary retirement scheme of the employer and taken the money to which he was then found entitled to under the scheme out of his own sweet-will and without any compulsion. In such facts, it was held that such person then ceases to be under employment of the company and cannot agitate for any kind of his past right with his erstwhile employer. In the case of R.Varaprashad (supra) also it was held by the Supreme Court that once the employee had opted for voluntary retirement of his own choice, which had been accepted, then he could not claim anything contrary to the terms of the scheme that had been accepted by him.

Similarly the case of Romesh Chander Kanoji is also distinguishable on facts as it was a different scheme which the Supreme Court was dealing with, to the effect that under the said scheme an opportunity of 15 days was given to the employee/applicant to withdraw from the scheme. In the present case the respondents have not been able to show any such condition in the voluntary retirement scheme which is being considered by this Court. As such, all the aforesaid decisions which have been relied upon by the learned counsel for the respondents do not help them.

The modified voluntary retirement scheme of the respondent-mill, can only be said to be an invitation to an offer. In response to the same, the offer was made by the petitioner on 12.7.2002, which was only a conditional offer and was subject to fulfillment of certain condition. As such, no agreement or contract could be said to have been concluded unless offer was accepted. It is not disputed that neither the condition had been fulfilled by the respondents as had been imposed by the petitioner in his offer, nor his offer had been accepted by the respondent-mill prior to the date of the withdrawal of his offer of resignation, which was 1.7.2003.

In Shambhu Murari Sinha (supra) the Supreme Court was dealing with a case where 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 alongwith detailed particulars would follow", and before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters to which there was no response from the respondents. It was after the withdrawal of the option for voluntary retirement that the respondents directed for release of the employee from the service, and that too from the next date. The employee was paid his salaries etc. till his date of actual release and it was therefore held that "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."

In the case of J.N.Srivastava (supra) the employee had offered for voluntary retirement on 3.10.1989 but with effect from 31.1.1990. His offer was accepted by the authorities on 2.11.1989 itself, but thereafter, before 31.1.1990 was reached, the appellant, on 11.12.1989, wrote letter to withdraw his voluntary retirement proposal, which was rejected by the authority vide communication dated 26.12.1989. The employee had also given up his charge of the post as per his memo relinquishing the charge. In such facts it was held by the Supreme Court that "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."

In my view, the case in hand is on a better footing, as the offer made by the petitioner under the modified voluntary retirement scheme of the respondent was only conditional and such condition has admittedly not yet been fulfilled by the respondent mill. The petitioner, first on 3.3.2003, had written to the respondent mill that since his provident fund account had not been regularized, which was a condition made in his offer of resignation under the scheme, it was specifically stated by the petitioner that the conditional offer tendered by him under the scheme may remain in abeyance. Admittedly, the petitioner continued to work and the jural relationship of employee and employer between the petitioner and the respondent mill continued. Even though the respondent mill may have intimated by communication dated 28/31.5.2003 that the cut off date for acceptance of the resignation/offer of the petitioner would be 1.6.2003, but the same is to be ignored in the case of the petitioner for two reasons; firstly, the petitioner had already (on 3.3.2003) made a request for keeping his offer of resignation in abeyance; and secondly, the cut off date as fixed for 1.6.2003 had been cancelled by the respondent mill itself, and the new cut off date was to be informed subsequently which was then on 14.7.2003 intimated to be as 16.7.2003 and prior to that, on 1.7.2003, the petitioner had already communicated to the respondent mill that his offer for resignation under the scheme may be treated as cancelled.

In such circumstances, the relationship of employer and employee continued between the petitioner and the respondent mill. During  this period the petitioner had already withdrawn his offer for resignation under the scheme, and the condition spelled out in the initial offer of the petitioner had never at any stage been fulfilled by the respondent. In the absence of the same having been fulfilled, or the offer of the petitioner having been accepted by the respondent mill, no contract or agreement could be said to have been finalized between the petitioner and the respondent mill so as to voluntarily retire the petitioner on the basis of his offer made on 12.7.2002.

Accordingly, for the foregoing reasons, the impugned order dated 14.7.2003 cannot be said to be justified in the case of the petitioner and this writ petition is liable to be allowed. The impugned order dated 14.7.2003, setting out the cut off date of resignation of the petitioner under the modified voluntary retirement scheme, is quashed, but however only in so far as it relates to the petitioner. It is provided that the petitioner shall be treated as on duty with effect from 16.7.2003, and shall be entitled to all consequential benefits including payment of back wages etc. If the respondent mill has been closed down in pursuance of the notification of the Central Government dated 9.3.2004 (as has been submitted by the learned counsel for the respondent-mill), it is  directed that, after the closure of the said mill, the petitioner shall be entitled to all such benefits as other employees were to get who were working with the respondent mill as on the date of its closure.

In the end learned counsel for the petitioner made an oral prayer that the case of the petitioner for absorption in any other mill of the respondent-National Textile Corporation may be considered. The submission is that the petitioner was initially appointed in Atherton Mills of the National Textile Corporation which is still in operation and it was only by virtue of the petitioner being transferred to the New Victoria Mills, which has been closed down, that the petitioner would have to face the consequences of retrenchment. In the aforesaid circumstances, it is directed that in case if there is any such scheme for absorption of the employees of New Victoria Mills, Kanpur and also in case if other employees of the said New Victoria Mills, Kanpur have been so absorbed after closure of the said mill, the case of the petitioner for absorption in some other mill of the respondent-National Textile Corporation may also be considered by the Corporation, as expeditiously as possible.

With the aforesaid observations/directions, this writ petition stands allowed. No order as to costs.

Dt/-22.8.2005

dps/PS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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