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Service matter – voluntary retirement application pending – terminated service due to unauthorized absent from service by joining in other’s company = Before accepting the voluntary retirement No employee remain absent from his duties with out permission, pending his application for voluntary retirement, the employer can initiate departmental proceedings on founding guilty, his services may be terminated and in such case, the petitioner can not press for disposal his application for voluntary retirement application first by dropping the disciplinary proceedings = Voluntary Retirement Scheme was introduced and the Petitioner also applied on 7.4.1998 to avail the benefits of the Scheme. However, without waiting for acceptance of his application seeking voluntary retirement, the Petitioner proceeded to the United States and applied for further leave from 1.6.1998 to 30.6.1998. Such prayer was rejected and the Petitioner was asked by letter dated 26.6.1998 to join his duties from 1.7.1998. – the Petitioner moved the Kerala High Court in its writ jurisdiction for a direction upon the authorities to accept his prayer for voluntary retirement and to drop the disciplinary action initiated against him. – before the Division Bench in which Petitioner’s counsel strongly urged that his application for voluntary retirement be accepted. He also added a new dimension to his submissions that since there was no response from the side of the Respondent, his application for voluntary retirement must be deemed to have been accepted. Accordingly, the subsequent proceedings taken by way of disciplinary proceedings and the order of termination of services passed therein, must be held to be entirely invalid.= whether the order of dismissal passed against the Petitioner could be converted into an order of compulsory retirement. = It is well-established that a Voluntary Retirement Scheme introduced by a company, does not entitle an employee as a matter of right to the benefits of the Scheme. Whether an employee should be allowed to retire in terms of the Scheme is a decision which can only be taken by the employer company, except in cases where the Scheme itself provides for retirement to take effect when the notice period comes to an end. A Voluntary Retirement Scheme introduced by a company is essentially a part of the company’s desire to weed out the deadwood. 14. The Petitioner’s contention that his application for voluntary retirement came into effect on the expiry of the period of notice given by him must fail, since there was no such stipulation in the scheme that even without acceptance of his application it would be deemed that the Petitioner’s voluntary retirement application had been accepted. Once that is not accepted, the entire case of the Petitioner falls to the ground. The decision in Tek Chand’s case (supra) will not, therefore, have any application to the facts of this case, particularly when the Petitioner’s application for voluntary retirement had not been accepted and he had been asked to rejoin his services. The Petitioner was fully aware of this position as he continued to apply for leave after the notice period was over. 15. We are not, therefore, inclined to interfere with the orders impugned in the Special Leave Petition which is, accordingly, dismissed.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40508

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 31250 OF 2011
C.V. Francis …Petitioner
Vs.
Union of India & Ors. …Respondents
J U D G M E N T
ALTAMAS KABIR, CJI.
1. The Petitioner, who has appeared in person, was
employed as a Manager by the Respondent, Bokaro
Steel Limited, which subsequently became a unit of
Steel Authority of India (SAIL) from 20.2.1998. On
the same date a Voluntary Retirement Scheme was
introduced and the Petitioner also applied on
7.4.1998 to avail the benefits of the Scheme. ThePage 2
2
Petitioner claims to have applied for leave from
30.4.1998 to 31.5.1998 which was purported to have
been sanctioned.
2. However, without waiting for acceptance of his
application seeking voluntary retirement, the
Petitioner proceeded to the United States and
applied for further leave from 1.6.1998 to
30.6.1998. Such prayer was rejected and the
Petitioner was asked by letter dated 26.6.1998 to
join his duties from 1.7.1998. The Petitioner did
not join his duties, as directed, but again applied
for leave from 1.7.1998 to 31.8.1998. By its letter
dated 3.8.1998, the Respondent Company informed the
Petitioner that leave had not been granted and that
he was being treated as absent from duty without
leave, for which disciplinary proceedings were
being contemplated against him for unauthorised
absence. In the absence of any response from him,
the Respondent Company once again wrote to thePage 3
3
Petitioner on 14.8.1998, asking him to report for
duty within ten days, failing which disciplinary
action would be initiated against him, but the
Petitioner failed to respond even to the said
letter. On 11.10.1998, a disciplinary enquiry was
initiated against the Petitioner for his
unauthorised absence from duty.
3. Without replying to the charges against him,
the Petitioner sent yet another representation
dated 20.11.1998 to the Respondent Company to
accept his request for voluntary retirement. As
such prayer was rejected, the Petitioner moved the
Kerala High Court in its writ jurisdiction for a
direction upon the authorities to accept his prayer
for voluntary retirement and to drop the
disciplinary action initiated against him. The
Kerala High Court disposed of the Writ Petition on
the same day and by its Order dated 23.4.1999
directed the Union of India to dispose of thePage 4
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Petitioner’s representation within a reasonable
time. It was made clear that whatever action was
taken would be subject to the order to be passed on
the Petitioner’s representation. The Petitioner
was given ample opportunity to represent his case
by the Respondent Union of India, which vide Order
dated 11.10.1999, rejected the Petitioner’s
representation. Since, thereafter, on 29.12.1999,
the Petitioner was found guilty in the departmental
proceedings, his services were terminated.
4. The said Order was challenged by the Petitioner
in the Kerala High Court by way of Writ Petition
No. 26659 of 2009, which was, however, rejected on
the ground that the Kerala High Court had no
territorial jurisdiction to entertain the same.
Thereafter, the Petitioner approached the Jharkhand
High Court by way of Writ Petition (S) No. 4057 of
2004.Page 5
5
5. The Writ Petition having been dismissed by the
learned Single Judge, the Petitioner preferred an
appeal before the Division Bench in which
Petitioner’s counsel strongly urged that his
application for voluntary retirement be accepted.
He also added a new dimension to his submissions
that since there was no response from the side of
the Respondent, his application for voluntary
retirement must be deemed to have been accepted.
Accordingly, the subsequent proceedings taken by
way of disciplinary proceedings and the order of
termination of services passed therein, must be
held to be entirely invalid.
6. In support of his submissions, the Petitioner
relied heavily on the decision of this Court in Tek
Chand Vs. Dile Ram [(2001) 3 SCC 290]. Although,
the said decision was rendered in the context of an
election, incidentally the question of voluntary
retirement also came up for consideration. ThePage 6
6
learned Judges held that there were three
categories of rules relating to seeking of
voluntary retirement after notice. In the first
category, voluntary retirement automatically comes
into force on expiry of notice period. In the
second category also, retirement comes into force
unless an order is passed during notice period
withholding permission to retire and in the third
category voluntary retirement does not come into
force unless permission to this effect is granted
by the competent authority. In such a case, refusal
of permission can be communicated even after the
expiry of the notice period.
7. The Petitioner then referred to Rule 48-A of
the Central Civil Services Pension Rules, dealing
with retirement on completion of 20 years’
qualifying service. The Petitioner pointed that
under Sub-rule (1) at any time after the Government
servant has completed twenty years’ qualifyingPage 7
7
service, he may, by giving notice of not less than
three months in writing to the Appointing
Authority, retire from service. He also pointed
that under Sub-rule (2), the notice of voluntary
retirement given under sub-rule (1) would have to
be accepted by the Appointing Authority. However,
under the proviso thereto, it is further provided
that where the Appointing Authority does not refuse
to grant the permission for retirement before the
expiry of the period specified in the said notice,
the retirement shall become effective from the date
of expiry of the said period.
8. Drawing an analogy with the facts of his own
case, the Petitioner contended that even in his
case, upon expiry of the period of notice given by
him to retire voluntarily in terms of the Voluntary
Retirement Scheme, the retirement became
ineffective on expiry of the said period of the
notice. Accordingly, the subsequent letterPage 8
8
addressed to him by the Respondent company to
rejoin his duty was of little consequence and any
action taken thereupon would be void. According to
Petitioner, the termination of his services was in
violation of the well-settled principles relating
to acceptance of voluntary retirement laid down in
Tek Chand’s case (supra).
9. Appearing for the Respondent Company, Mr. Dhruv
Mehta, learned Senior Advocate, strongly opposed
the Petitioner’s case on behalf of the Respondent
Company primarily on the ground that in a scheme
for voluntary retirement floated by a company, it
is entirely the company’s discretion to accept and
allow an employee’s application for voluntary
retirement. The concept of deemed acceptance also
was not available in the instant case, since the
scheme did not contain such a provision.
10. Mr. Mehta highlighted the conduct of the
Petitioner after applying for voluntary retirement.Page 9
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Mr. Mehta pointed out that without waiting for his
prayer for voluntary retirement to be accepted, the
Petitioner joined an American Company even before
the expiry of the notice period. In fact, it was
quite evident from the tenor of his letters seeking
leave, that the Petitioner never intended to rejoin
his duty in the Respondent company. On the
question of deemed acceptance of an employee’s
application for voluntary retirement, Mr. Mehta
referred to the decision of this Court in Padubidri
Damodar Shenoy Vs. Indian Airlines Limited and
Another [(2009) 10 SCC 514], wherein, although, the
Petitioner upon completing of 20 years’ of
qualifying service had applied for voluntary
retirement, he was informed that such retirement
would not be automatic on expiry of period of
notice, but it would become effective only after
the approval of the competent authority. In the
said case, this Court also observed that the
employee had never acted as if his services hadPage 10
10
been discontinued on the expiry of the three
months’ notice period, inasmuch as, he continued to
attend his duties. Thus, the application for
voluntary retirement made by the Petitioner
therein, never really came into effect.
11. Mr. Mehta submitted that the facts of the
present case were somewhat similar to the facts of
the above case, where, although an application had
been made for voluntary retirement, the same was
not accepted and the services of the Petitioner
therein did not stand terminated even after the
expiry of the period of notice. Mr. Mehta urged
that on the same reasoning, the decision in Tek
Chand’s case (supra) would have no application to
the facts of this case.
12. Having considered the submissions made on
behalf of the parties, we see no reason to
interfere with the judgment and Order of learned
Single Judge, as upheld by the Division Bench ofPage 11
11
the High Court, rejecting the Petitioner’s prayer
challenging the termination of his services. It
may be noted that notice was issued on the Special
Leave Petition on 11.11.2011 only to consider
whether the order of dismissal passed against the
Petitioner could be converted into an order of
compulsory retirement. We have considered the
matter from that angle and do not find any
justification to modify the Order of either the
learned Single Judge or the Division Bench. As has
been emphasised by the Division Bench of the High
Court, it is obvious that the Petitioner having
obtained employment in the United States of
America, had no intention of rejoining his duties
with the Respondent company. Instead of waiting
for the notice period, the Petitioner moved to the
United States, having obtained employment there and
his letters praying for leave were of no
consequence. Furthermore, instead of attending the
disciplinary enquiry commenced against him, thePage 12
12
Petitioner repeatedly requested the Respondent
company to accept his application for voluntary
retirement.
13. It is well-established that a Voluntary
Retirement Scheme introduced by a company, does not
entitle an employee as a matter of right to the
benefits of the Scheme. Whether an employee should
be allowed to retire in terms of the Scheme is a
decision which can only be taken by the employer
company, except in cases where the Scheme itself
provides for retirement to take effect when the
notice period comes to an end. A Voluntary
Retirement Scheme introduced by a company is
essentially a part of the company’s desire to weed
out the deadwood.
14. The Petitioner’s contention that his
application for voluntary retirement came into
effect on the expiry of the period of notice given
by him must fail, since there was no suchPage 13
13
stipulation in the scheme that even without
acceptance of his application it would be deemed
that the Petitioner’s voluntary retirement
application had been accepted. Once that is not
accepted, the entire case of the Petitioner falls
to the ground. The decision in Tek Chand’s case
(supra) will not, therefore, have any application
to the facts of this case, particularly when the
Petitioner’s application for voluntary retirement
had not been accepted and he had been asked to
rejoin his services. The Petitioner was fully
aware of this position as he continued to apply for
leave after the notice period was over.
15. We are not, therefore, inclined to interfere
with the orders impugned in the Special Leave
Petition which is, accordingly, dismissed. Page 14
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16. Having regard to the facts of the case, there
will be no order as to costs.
……………….CJI.
(ALTAMAS KABIR)
…………………J.
(ANIL R. DAVE)
…………………J.
(RANJANA PRAKASH DESAI)
New Delhi
Dated: July 03, 2013.

 

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