A.S. NAIDU, J & B.N.MAHAPATRA, J. W.P.(C) NO.10291 of 2006 (Decided on 14.05.2010) SATYANARAYAN PATTNAIK ……… Petitioner. .Vrs. M.D., ORISSA STATE HANDLOOM WEAVERS’ CO-OPERATIVE SOCIETY LTD. & ANR. ……….. Opp.Parties CONSTITUTION OF INDIA, 1950 – ART.226. For Petitioner - M/s. Suresh Ch.Mishra & R.C.Praharaj. For Opp.Parties – Addl. Government Advocate M/s. A.K.Rath, Biswajit Jena, P.K.Mohanty & P.n.Mohanty (for Opp.party No.2). B. N. MAHAPATRA, J. This writ petition has been filed challenging the office order dated 27.07.2006 (Annexure-4) passed by the Managing Director, Orissa State Handloom Weavers’ Co-operative Society Ltd (for short “the Society”) by which the opposite party No.1-Managing Director of the Society accepted the petitioner’s application dated 14.07.2006 for voluntary retirement and allowed him to retire w.e.f. 31.07.2006 and relieved him from service from that date. 2. The facts and circumstances giving rise to the present writ petition are that the petitioner on being selected, joined the Society as Junior Clerk on 08.03.1984 as per Annexure-A series to Additional Counter affidavit filed by O.P. No.1 (but the date of joining as stated by the petitioner in the writ petition, i.e., “08.03.2006” seems to be incorrect). Opposite party No.1-Managing Director on 30.06.2006 on the bases of decision of the Board of the Management vide resolution dated 09.06.2006 and the Government of Orissa P.E. Department letter No. 2059 dated 08.06.2006 issued notice under Annexure- 1 inviting applications from the eligible employees of the society for voluntary retirement under the Voluntary Retirement Scheme (for short “the Scheme”). On 14.07.2006, the petitioner tendered his application for voluntary retirement under the Scheme. Thereafter on 17.07.2006, he made an application (Annexure-2) to the opposite party No.1- Managing Director for withdrawal of his application for voluntary retirement as he was left with 12 years of service. Again on 24.07.2006, the petitioner sent another application (Annexure-3) to opposite party No.1-Managing Director by speed post requesting him to allow the application dated 17.07.2006 (Annexure-2) filed by petitioner for withdrawal of the application dated 14.07.2006 under the Scheme. However, the opposite party No.1 accepted the petitioner’s application for voluntary retirement on 27.07.2006 and allowed the petitioner to retire from service w.e.f. 31.07.2006 and relieved him from service vide Annexure-4. Hence, this writ petition. 3. Mr. Suresh Chandra Mishra, learned counsel appearing on behalf of the petitioner, vehemently argued that the office order dated 27.07.2006 passed under Annexure-4 asking the petitioner to retire from 31.07.2006 A.N. upon consideration of the petitioner’s application dated 14.07.2006 for voluntary retirement ignoring his applications dated 17.07.2006 (Annexure-2) and 23.07.2006 (Annexure-3) filed for withdrawal of the application dated 14.07.2006 being contrary to law is unsustainable. According to Mr. Mishra, the petitioner applied for withdrawal of his application made for voluntary retirement before the same was accepted on 27.07.2007. Thus, the application of the petitioner for voluntary retirement was accepted by the time the same had lost its existence in the eye of law. In absence of any legal, contractual or constitutional bar, an application for voluntary retirement can be withdrawn at any time before the same is made effective. In support of his contention, Mr. Mishra relied on the decision of the Apex Court in Food Corporation of Indian & Others vs. Ramesh Kumar, AIR 2007 SC 2864 and the decision of this Court in M.S.P. Dora vs. Orissa State Road Transport Corporation & Others, 2006 (I) OLR 240. It is further submitted that even though the petitioner was willing and ready to work, he was illegally not allowed to do so. Therefore, the petitioner may be treated to be in service all along entitling him to all the service and financial benefits. 4. Mr. Biswajit Jena, learned counsel appearing on behalf of the opposite party No.1, per contra, vehemently contended that the Society is an apex Co-operative Society. Its primary object is to improve socio-economic conditions of the poor weavers in the State. Due to large scale closure of unviable sale depots of the Society more than 100 employees became surplus and the society was not in a position to take the liability of their salaries and to make the Society viable. A restructuring proposal was formulated, which was approved by the State Government as well as by the Development Commissioner of Handloom, Government of India. Accordingly, the Scheme for voluntary retirement was floated and applications were invited from the interested employees to take voluntary retirement as per Annexure-1. Pursuant to the notice under Annexure-1, the petitioner applied for voluntary retirement, which was duly considered and accepted by the opposite parties. At no point of time the petitioner was compelled to take voluntary retirement nor he was relieved forcibly. The post held by the petitioner, after his retirement, has already been abolished. The jural relationship between the present petitioner and the society came to an end immediately after the decision was taken for acceptance of his voluntary retirement and transmission of his offer for voluntary retirement to the opposite party No.2 for providing fund. Prior to receipt of his application for withdrawal, a decision was taken to relieve him from service and to sponsor petitioner’s name to opposite party No.2 for sanction and release of funds in his favour towards the claim for voluntary retirement. The authorities after scrutinizing all the applications under the Scheme on 17.07.2006 vide letter No. 1422 dated 20.07.2006 (Annexure-A series) recommended the case of 69 employees to Public Enterprises Department for sanction of funds. On 21.07.2006, the withdrawal application was rejected. On the same day, the opposite party No.1-Managing Director, vide his order No. 1457(26) dated 21.07.2006 directed the applicant to handover the charge to Sri A.K. Sahoo, L.A. by 27.07.2006 (Annexure-C). Under the Notification fifteen days’ time was allowed to the employees to submit their voluntary retirement applications and another fifteen days time was granted to the authorities to work out the Scheme in order to relieve the employees from their respective posts with effect from 31.07.2006. If within this specified time the applications would not have been considered by the authorities then it could not have been possible on the part of the authorities to work out the Scheme and the whole calculation of the authorities would have fallen down. Hence, there was no scope for the authorities to consider any application after 15.07.2006. In support of his contention, Mr. Jena relied upon the decision of the apex Court in State Bank of Patiala v. Romesh Chander Kanoji and 2 Ors., (2004) 2 SCC 651. Relying on a decision of this Court in Ganesh Chandra Samal v. Addl. Registrar, Co-operative Societies-cum-Managing Director, OMFED, Bhubaneswar and another, 2006 (Supp. II) OLR 226, Mr. Jena contended that the opp. party-Society does not come within the category of a co-operative society which can acquire the status of a ‘State’ or local or other authority and, therefore, is not amenable to writ jurisdiction. 5. In the rejoinder, the petitioner has stated that the action of the opposite parties is contrary to the conditions enumerated in the Scheme. The contention of the opposite parties that withdrawal application of the petitioner for voluntary retirement was received after the decision was taken by the opposite party No.1-Managing Director is not tenable since the date on which such decision was taken is neither mentioned in the counter nor any supporting document has been annexed to that effect. The withdrawal application was received by the opposite parties before the sanction order was passed and communicated to the petitioner. 6. At this juncture, it is felt necessary to reproduce here some of the relevant paragraphs of the Notification dated 30.06.2006 (Annexure-1) and paragraph-9(i) of the Scheme (Annexure-5): Notification dated 30.06.2006 “The employees who are interested to retire under this Voluntary Retirement Scheme may apply to the Competent Authority in the prescribed format. The application shall be submitted before the Competent Authority on or before 15th July, 2006. After due scrutiny of the applications so received the employees found eligible shall be relieved from their respective service with effect from 31st July 2006”. Voluntary Retirement Scheme (Annexure-5) “9. General Conditions: The following conditions shall also apply to avail the benefit under this Scheme: (i) Application for Voluntary Retirement cannot be withdrawn after sanction order to this effect is communicated to the concerned employee.” 7. In order to appreciate the rival contentions, it will be appropriate to refer to some of the decisions of the apex Court and this court. In Food Corporation of India (supra), the apex Court held that if the incumbent withdraws his offer within the time limit fixed for revocation, then the offer given by the incumbent cannot be treated against him and it will be deemed that he has revoked the offer. The Hon’ble Supreme Court in Balram Gupta V. Union of India & Anr. 1988 SCC (L & S) 126, held that notice of voluntary retirement can be withdrawn at any time before a retirement becomes effective. In that case, the appellant after completing more than 20 years’ government service, offered by his letter dated December 24, 1980 to retire voluntarily from service w.e.f. March 31, 1981 by treating the notice period w.e.f. January 1, 1981. The respondent-Government by its letter dated January 20, 1981 allowed the appellant to do so. However, in the meantime, the appellant stated that on account of persistent and personal requests from the staff members, he had to change his mind and accordingly by his letter dated January 31, 1981 he sought to withdraw his notice of voluntary retirement. But the authority concerned disallowed the appellant’s request under Rule 48-A (4) of the Central Civil Services (Pension) Rules which precludes a government servant from withdrawing his 3 notice “except with the specific approval of such authority”. Allowing the appeal with costs the Hon’ble Supreme Court held that there was no valid reason for withholding the permission by the respondent. Therefore, the appellant was entitled to be put back to his job with all the consequential benefits treating him to be in the job from March 31, 1981. The retirement from the government service was to take effect at a subsequent date prospectively and that the withdrawal was long before that date. Therefore, the appellant had locus poenitentiae. The dissolution of the contract of employment would be brought about only on the date indicated i.e. March 31, 1981 and up to that, the appellant was and is a government employee. There is no unilateral termination of the same prior thereto. Being a government servant, he is at liberty and entitled independently without adhering to sub-rule (4) of Rule 48-A of the Pension Rules, to withdraw his notice of voluntary retirement. In this respect, it stands at par with letter of resignation. In Punjab National Bank Vs. P.K. Mittal, AIR 1989 SC 1083, the Hon’ble Supreme Court again examined the case wherein the employee tendered his resignation on 21.01.1986 to be effective on 30.06.1986. The resignation was accepted on 07.02.1986 pointing out that it had been accepted by the Authority with immediate effect. The Apex Court held that the Authority had no competence to advance the date of its effectiveness and resignation, if accepted, it could have become effective only on 30.06.1986 and as the resignation was to be effective with future date, the employee had a right to withdraw the same prior to 30.06.1986. The Apex Court in J.N.Srivastava V. Union of India & Ors., (1998) 9 SCC 559, held that it is well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The Hon’ble Supreme Court in Shambhu Murari Sinha v. Project & Development India & Anr., (2000) 5 SCC 621, held as under: “From the facts stated above, it would be seen that though the option of voluntary retirement exercised by the appellant by his letter dated 18-10-1995 was accepted by the respondent-Management by their letter dated 30-7-1997, the appellant was not relieved from service and he was allowed to continue in service till 26-9-1997, which, for all practical purposes, would be the “effective date” as it was on this date that he was relieved from service. In the meantime, as pointed out above, the appellant had already withdrawn the offer of voluntary retirement vide his letter dated 7-8-1997. The question which, therefore, arises in this appeal is whether it is open to a person having exercised option of voluntary retirement to withdraw the said offer after its acceptance but before it is made effective. The question is squarely answered by three decisions, namely, Balram Gupta v. Union of India, J.N. Srivastava v. Union of India and Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia in which it was held that the resignation, in spite of its acceptance, can be withdrawn before the “effective date”. That being so, the appeal is allowed. The impugned judgment of the High Court is set aside with the direction that the appellant shall be allowed to continue in service with all consequential benefits.” The apex Court in F.C.I. and others v. Romesh Kumar (supra) held that if the revocation is made within the time limit fixed for revocation, then the offer given by incumbent cannot be treated against him and it will be deemed that he had revoked the offer. 4 This Court in M.S.P.Dora Vs. Orissa State Road Transport Corporation represented by its Chairman-cum-Managing Director & others, 2006(1) OLR-240, held that the petitioner has every right to withdraw the application for voluntary retirement anytime before the jural relationship between him and his employer got severed. In Prasanna Kumar Pani -v- State of Orissa and others in W.P.(C) No.16506 of 2008 (disposed of on 17.07.2009), this Court held that the incumbent has locus standi to withdraw his proposal for voluntary retirement before the date for voluntary retirement is reached. 8. In the present case, as stated above, there is a specific provision for withdrawal of the offer for voluntary retirement. According to Clause 9(i) of the Scheme, application for voluntary retirement cannot be withdrawn after the sanction order to this effect is communicated to the employee concerned. Admittedly, in the instant case, the application dated 14.7.2006 for voluntary retirement has been withdrawn by the petitioner on 17.7.2006 by which date no sanction order was communicated to the concerned employee as required under clause 9(i) of the Scheme. In paragraph-9 of the counter affidavit, the opposite parties averred that prior to receipt of the application for withdrawal, decision was taken to relieve the petitioner from service and to sponsor his name to opposite party No.2 for sanction and release of the funds towards his VRS claim. Unfortunately, Para-9 of the counter affidavit does not reveal the date on which the application for withdrawal of the voluntary retirement was received by the opposite parties and the date on which the decision was taken to relieve the petitioner from service and the date on which his name was sponsored to opposite party No.2 for sanction and release of funds towards VRS. Perusal of Annexure-A annexed to additional counter affidavit dated 16.07.2009 nowhere reveals that on 17.07.2006 the authorities scrutinized all the VRS applications. In course of hearing, learned counsel appearing for the opposite parties has also not brought to the notice of the Court either from Annexure-A or from any other document that the authorities have scrutinized all the VRS applications on 17.07.2006 as stated in para-3 of the additional counter affidavit dated 16.07.2009. On the other hand, Annexure-B attached to the additional affidavit dated 16.07.2009 filed by opposite party No.1 reveals that the withdrawal application of the petitioner dated 17.07.2006 was put up before the Secretary on 18.07.2006. The Secretary put up the same before the opposite party No.1 on 19.07.2006, which was rejected by opposite party No.1 on 21.07.2006. This fact has been clearly admitted in paragraph-4 of the additional counter affidavit. Annexure-C reveals that the date mentioned in the said order has been overwritten. This casts clouds of suspicion in our mind about the actual date on which such notice was issued. In any event, fact remains that the application dated 14.07.2006 for voluntary retirement has been withdrawn by the petitioner on 17.07.2006 by which date no sanction order was communicated to the employee concerned as required under Clause 9(i) of the Scheme. Therefore, the action of the opposite parties in accepting the petitioner’s application for voluntary retirement ignoring his application for withdrawal of the same is unsustainable. 9. The decision cited by Mr. Jena, learned counsel for the opp. parties is of no help to the opp. parties. In State Bank of Patiala (supra), the apex Court held that since the schemes in question are funded schemes, the management is required to create a fund. The creation of the fund would depend upon the number of application; the cost of the 5 Scheme; liability which the Scheme would impose on the Bank and such other variable factors. If the employees are allowed to withdraw from the Scheme at any time after its closure, it would not be possible to work out the Scheme as all calculations of the management would fail. SBPVRS is an invitation to offer and not an offer. Therefore, clause (5) of SBPVRS gives locus poeniteniae to the employee to withdraw by 1.3.2001 after which the mode of acceptance contemplated by clause (8) of SBPVRS would apply and the Bank will proceed to vet the applications. Reading clauses (5), (8) and (9)(i), it is clear that employees are precluded from withdrawing from SBPVRS after the closure of the Scheme on 1.3.2001. As stated above, the petitioner has withdrawn his application for voluntary retirement within the time prescribed in the Scheme itself. Therefore, this decision of the apex Court on the other hand supports the case of the petitioner. 10. In Ganesh Chandra Samal (supra), the issue was whether Opposite Party no.1 though a Cooperative Society is amenable to writ jurisdiction being not a State or authority within the meaning of Article 12 of the Constitution. In that case this Court held that merely because a definite sum has been provided by the State Government either as subsidy or grant that does not make the functioning of the Society run and control by the State, and, therefore, opposite party no.1, though a Co-operative Society is not amenable to writ jurisdictions. In the instant case neither in the counter affidavit dated 15.11.2006 nor in the additional affidavit dated 16.7.2009 any such stand/plea has been taken by the opposite parties much less any supporting material to that effect with regard to the maintainability of the writ petition. Law is well settled that a party has to plead the case and produce/adduce sufficient evidence to substantiate his stand taken in the petition and, in case the pleadings are not complete, the Court is under no obligation to entertain the plea. In Bharat Singh & Ors.Vs.State of Haryana & Ors, AIR 1988 S.C.2181, the Supreme Court has observed as under:- “In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.” 11. In view of the above, we have no hesitation to hold that the action of the opposite parties in accepting the petitioner’s application for voluntary retirement ignoring his application for withdrawal of the same being not in conformity with the provisions of the Scheme is unsustainable. The petitioner was deemed to have been in service all along during the period in question. The opposite parties-authorities will have to make good to the petitioner with all pecuniary benefits by treating him to be in continuous service for the period in question as the petitioner is always ready and willing to work though he 6 was illegally relieved from service with effect from 31.7.2006 (Annexure-4) for no fault of him. The petitioner is entitled to get all arrear salary, other emoluments including increment and pecuniary benefits. Our above view gets support from the decision of the Hon’ble Supreme Court in Srikantha S.M.V.Bharath Earth Movers Ltd, (2005) 8 SCC 314, wherein it is held as under:- “The next question is, as to what benefits the appellant is entitled to. As he withdrew the resignation and yet he was not allowed to work, he is entitled to all consequential benefits. The learned counsel for the respondent Company no doubt contended that after 15.01.1993, the appellant had not actually worked and therefore, even if this Court holds that the action of the respondent Company was not in consonance with law, at the most, the appellant might be entitled to other benefits except the salary which should have been paid to him. According to the counsel, the principle of “no work, no pay” would apply and when the appellant has admittedly not worked, he cannot claim salary for the said period. 29. We must frankly admit that we are unable to uphold the contention of the respondent Company. A similar situation had arisen in J.N.Srivastava and a similar argument was advanced by the employer. The Court, however, negatived the argument observing that when the workman was willing to work but the employer did not allow him to work, it would not be open to the employer to deny monetary benefits to the workman who was not permitted to discharge his duties. Accordingly, the benefits were granted to him. In Shambhu Murari Sinha II also, this Court held that since the relationship of employer and employee continued till the employee attained the age of superannuation he would be entitled to “full salary and allowances” of the entire period he was kept out of service. In Balram Gupta in spite of specific provision precluding the government servant from withdrawing notice of retirement, this Court granted all consequential benefits to him. The appellant is, therefore, entitled to salary and other benefits.” 12. In that view of the matter, we quash the order dated 27.7.2006 (Annexure-4) passed by opposite party no.1 so far as the petitioner is concerned, and direct the opposite parties to give effect to this judgment within a period of three months from the date of receipt of a copy of this judgment. In the result, the writ petition is allowed. No costs. Writ petition allowed. 7