Dismissed

M/S New Victoria Mills and Others v. Shri Kant Arya

Allahabad HC12 Mar 2019SPLA/1188/2005

Case brief

AI extract

What is this about?

This special appeal challenged a single judge's order setting aside an employer's acceptance of an employee's withdrawn voluntary retirement application. The court held that voluntary retirement requires acceptance by the management, which was not granted before the employee revoked his request.

What did the court decide?

SPECIAL APPEAL NO. 1188 OF 2005 dismissed. Judgment of the learned Single Judge confirmed.

M/S New Victoria Mills and Others Vs Shri Kant Arya — Service and Employment | Allahabad HC (2019)

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Court No. - 34

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Case :- SPECIAL APPEAL No. - 1188 of 2005

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Appellant :- M/S New Victoria Mills And Others Respondent :- Shri Kant Arya Counsel for Appellant :- Vijay Sinha,Devendra Pratap Singh,Kirtika Singh,V.B. Singh Counsel for Respondent :- B.K. Tripathi,O.P.Singh,P.K. Tripathi,Ramesh Prajapati,S.K.Rao

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV, J.

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Heard Sri Devendra Pratap Singh, learned counsel for appellants and Sri Mayank Gupta, Advocate holding brief of learned counsel for respondents.

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This intra Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952) has arisen from judgment dated 22.08.2005 passed by learned Single Judge in Writ Petition No.16587 of 2004, whereby writ petition has been allowed and order dated 14.07.2003 impugned in writ petition has been set aside.

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Facts giving rise to present appeal are that National Textile Corporation Limited (hereinafter referred to as “Holding Company, NTC”) is a Company registered under Indian Companies Act, 1956 (hereinafter referred to as 'Act, 1956') and it is an undertaking of Government of India. Holding Company, NTC constituted another Company namely, National Textile Corporation (U.P.), Limited, Kanpur (hereinafter referred to as “NTCUPL”) having its registered Office at 14/82, Civil Lines, Kanpur. In other words, NTCUPL is a subsidiary Company of Holding Company NTC. NTCUPL set up several industrial establishments i.e. Textile Mills in State of U. P. including New Victoria Mill, Kanpur i.e. respondent 1. Petitioner Shri Kant Arya was appointed as Supervisor Maintenance in Warehouse Section of another Unit of NTCUPL i.e. M/s Atherton Mills and placed on probation in 1985. By order dated 27.07.1991 he was transferred to unit New Victoria Mills, Kanpur whereat he joined on 29.07.1991. Holding Company NTC

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circulated a Modified Voluntary Retirement Scheme (hereinafter referred to as “MVRS”) which was approved by Board of Director of Holding Company, NTC in its meeting dated 24.12.2001 and made effective on 01.01.2002. It superseded the earlier scheme circulated by letters dated 19.06.2001 and 06.11.2001. Procedure for voluntary retirement was given in para 5 of said scheme and it reads as under :

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5.0 PROCEDURE

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“5.1 An eligible employee may submit an application in the prescribed form for voluntary retirement under the scheme by tendering resignation from the post held and service in NTC to the Competent Authority. The post falling vacant as a result of an employee's voluntary retirement under the scheme shall in all cases stand abolished simultaneously while accepting resignation and order to that effect issued simultaneously before disbursing retirement benefits to employees under this scheme and no person (Permanent/badli/substitute/temporary, etc.) shall be engaged in his/her place.

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5.1 The abolition of a vacant post shall not be treated as a substitute for abolition of an occupied post. In exceptional cases and for reasons to be recorded in writing a corresponding manned post (Not vacant post) can also be abolished. Orders to this effect shall be issued before accepting resignation and disbursing retirement benefits.

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5.2 An employee retiring under this scheme shall not be eligible for appointment in any mills/office/retail showrooms etc of NTC group in any capacity, whatsoever.

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5.3 The existing permanency level shall not be increased and no badli/temporary/casual converted into permanent.

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5.4 All payments under this scheme shall be made by crossed Account Payee Cheque only in favour of the retiring employee. The cheque shall be handed over to the retiring employee only

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after he/she affixes his signature/thumb impression in token of its receipt, which shall be countersigned by at least two witnesses. In the case of workmen in the mills, Labour Welfare Officer and the Security Officer of the mills concerned shall also countersign.

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5.5 The period of any type of training e.g. Management Trainees, Trainee Supervisor or Company Trainee, like apprentice training before being absorbed in regular grade in continuation of training will not be taken into account for reckoning the length of service in the Company.

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5.6 In the case of show-room employees of Retail Marketing Division the calculation of compensation/ex-gratia will be on the basis of their average salary plus average of incentive/commission earned by them over a period of best five years.

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5.7 The Modified VR Scheme is also applicable to Casual/Temporary (by whatever name called) workers of NTC mill provided they had worked for minimum 240 days in a year.

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5.8 Payment under the scheme is subject to employee's vacating Company's accommodation or leased accommodation, returning of all of Company's properties held by him/her and payment of all outstanding dues to the Company.

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5.9Once an employee avails himself/herself of voluntary retirement from a PSU, he/she shall not be allowed to take up employment in any other PSU. If he/she desires to do so, he/she shall have to return the VRS compensation received by him/her to the PSU concerned. Where the compensation was paid out of a Government grant, the PSU concerned shall remit the refunded amount to the Government. In case the PSU is already closed/merged, the VRS compensation shall be returned directly to the Government.” (emphasis added)

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Under aforesaid scheme, petitioner-respondent Shri Kant Arya applied vide letter dated 12.07.2002 requesting that ensuring clearance of his all dues, his request for voluntary retirement be accepted. Request of petitioner was accepted by Management of New Victorial Mills, Kanpur vide letter dated 28.05.2003 and with effect from 01.06.2003, petitioner was informed of voluntary retirement. Subsequently, another order was issued on 02.06.2003 stating that cut off date of 01.06.2003 mentioned in acceptance letter dated 28.05.2003 with regard to retirement is hereby cancelled and a new cut off date shall be informed shortly and petitioner was directed to attend his duties.

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Thereafter by letter dated 01.07.2003 petitioner informed the respondent 1 that his retirement be not accepted and now his letter seeking voluntary retirement be treated to be cancelled, since he (petitioner) is not inclined to seek retirement. Ignoring said letter, respondent 1 issued letter dated 14.07.2003 informing petitioner that his voluntary retirement has been accepted with effect from 16.07.2003. Petitioner was directed to get his dues cleared within 25 working days which petitioner did not, hence letter dated 13.11.2003 was issued to petitioner requesting to collect his dues.

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This order dated 14.07.2003 was challenged by petitioner in Writ Petition No.16587 of 2004, firstly on the ground that he has already withdrawn his request, secondly, his request for voluntary retirement was conditional one and without satisfying the conditions it could not have been acted upon and thirdly that petitioner's letter dated 12.07.2002 was not for voluntary retirement, it talks of resignation, hence, it could not have been treated as an application for voluntary retirement.

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Learned Single Judge has held that letter of petitioner was conditional one and further that it was already withdrawn before its acceptance, it was not open to Employer to accept it subsequently.

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Learned counsel for appellant contended that voluntary retirement,

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on the request of petitioner, was already accepted by order dated 02.06.2003 and only the date from which retirement was to be affected, was deferred and notified by order dated 14.07.2003. Petitioner's withdrawal application is subsequent hence would have no legal consequence at all. He also submitted that since petitioner submitted application dated 28.05.2003 with reference to MVRS, therefore, though in letter dated 12.07.2002 he mentioned the word 'resignation' but in fact it was a request for voluntary retirement with all consequential benefits in accordance with MVRS.

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In our view, appeal deserves to be dismissed and judgment of learned Single Judge is liable to be confirmed. There is no provision in MVRS that once an application is submitted , the same could not have been withdrawn. On the contrary, para 1.6 clearly shows that request of voluntary retirement is not bound to be accepted, since, Management reserved right to refuse the application of voluntary retirement without assigning any reason. This shows that acceptance of request of voluntary retirement was a condition precedent, so as to give effect to voluntary retirement.

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However, Para 5.1 also shows that once an application for voluntary retirement is submitted and accepted, the post shall become vacant as a result of employee's voluntary retirement and shall stand abolished simultaneously, when order to that effect is issued. This belies contention of learned counsel for appellant that deferment of cut off date does not amount to recall of acceptance of request of voluntary retirement, inasmuch as, if it is treated to be an acceptance then the post would have stood abolished as per para 5.1 of MVRS and in that case, it was not possible for respondent 1 to ask petitioner to join his duty vide letter dated 02.06.2003 whereby cut off date of 01.06.2003, of acceptance of voluntary retirement, was cancelled. Direction to petitioner to join duties shows that post continued and para 5.1 had not come into operation. Subsequently, by order dated 14.07.2003, petitioner's application was

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accepted vide order dated 16.07.2003 but prior thereto petitioner has already revoked his request for voluntary retirement. Learned Single Judge, therefore, has rightly taken a view that voluntary retirement could not have been forced upon petitioner once he has already withdrawn before its valid and effective acceptance by Competent Authority.

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We, therefore, find no fault in the judgment of learned Single Judge.

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This appeal lacks merit. Dismissed accordingly.

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Interim order, if any, stands vacated.

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Order Date : 12.03.2019 Manish Himwan

M/S New Victoria Mills and Others v. Shri Kant Arya

Case brief

What is this about?

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M/S New Victoria Mills and Others v. Shri Kant Arya

Case brief

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