@ S ? i ? § ? § 3 i a c i i 1 \ M W E N T E E H E G H C O U R T ( 3 F J U D I C A T U R E A T B E A S E W J R W R I T P E W T I O N N G ' . 4 0 5 3 O F 2 9 0 4 ? E T I T I O N E R : M A N H A R A I ‘ J L A L G U P T A , S / o i a t e S h r i C h a n c i u L a l G u p t a A g e d a b o u t 4 8 y e a r s , O o c u p a l i o n — S a x - v i c e , R f a S a r k m d a , T a h s i l & D i m : E l a s p u r ( C G ) w R S U S ( 1 ) F C Q D G o m R z m o N O F : N D I A , T h r o u g h i t s Z o n a l M a m a g a M a s t ) M m b a i a w a h a a r a s h m ) . ( 2 ) T h e $ e n i o r , R a g i a n a l I v h i a g m F o a d O a m o m t i o n O f I n d i a , R e g ‘ o m } O f i i c e , T e l i b a n d h a R o a d T i g g d d a , R a i p u r , ( C G ) { 3 T h e D i s t r i c t M m a g a r , F o a d C o r p o r a t i o n i O f I n d i a , L i n k R o a d E l a s p u r ( C G ) R E S Z R J N D E N T S : W P E T I T I Q N 3 4 A 2 2 6 / 2 2 7 O F ‘ T H E C O N S I T I T U T I O N G F i N D i A ” A COVRT OF JUDICATVR®AT BILASPUR, CHHATTISGAEH Writ Petition No.3501 of 2004 P.R.K. Rao - Versiis ~ Food Corporation ofliidia & ottiers Wit Petition Ho. 3842 of 2004 D.P. Rajput - Versus - Food Corporation oflndia & others TOrit Petition Ho.4059 of 2004 M:aizliaraii Lal Gupta - Versus - Food Corporation of Iridia & ot.hers •Wirit Petition Ho. 3678 of 2004 Viiiod Acharya - Versus - Food Corporation of India & otliei's Writ Petition Ho.4104 of 2004 Nilkaiitli Pd. Sharma - Versus - Food Corporation of ladia & otliCTS Writ Petition No.4429 of 2004 Ram. Avtai" Shai'ma ~ Versus - F'ood Corporation of India & others POST FOR ORDBRS ON ll MAT. 2005 Sd/- L.C. Bhadoo Judge -^ 4;< •&^i^. HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARHt WSrit Petition No.3501 of 2004 P.R.K. Rao - Versus - Food Corporation of India & othCTS Writ Petition No. 3842 of 2004 D.P. Rajput - Versus - Food Corporation oflndia& others Writ Petition No.4059 of 2004 Manliaran Lal Gupta " Versus - Food Corporation ofladia & others Writ Petition No. 3678 of 2004 Viaod Acharya - Versus ~ Food Corporation of ladia & others Writ Petition No.4104 of 2004 Nilkanfh Pd. Sharma - Versus - Food Corporation of India & ofhers Writ Petition No.4429 of 2004 Raoi Avtar Sharma I - Versus - I- Food Corporation of ladia & othersj Present: - Shri Rajeev Shrivastava, Advocate: Shd P.S. Koshy.Advocate: Shri Vinay Pandey, Advocate: SIid Yogesh Paiidey, Advocate: Shri Klshore Bhaduii^, Advocate: Shri B.P. Gupta, Advocate: For petitiaaer m W.P. No.3842/04. Far petitloner in W.P. No.4429/04. For petitioner m W.P. No.3501/04. For petitioners iti W.P. No.4059/04, 3678/04&4104/04. For fhe respondents. Por the resporidente in. W.P. No.4429/04. ORDER (Passed on 11th May, 2005) Before Ho£i?ble Mr, L.C.Bhadoo, J, 1, Writ Pedtion No.3842/2004 ffled by D.P. Rajput, who was working as Assistant Manager in fhe Food Corporation of hidia, ^ |u»*f.i. Page2ofl9 s't^ Cl Writ Petition No.4429/2004 ffled by Ramavtar Sharma, who was workiiig as Assistant Grade-I (D) in. tlie Food Corporation oflndia, Writ Petition No.3501/2004 ffled by P.R.K. Rao, who was working as Assistant Manager (Q.C), ia the Food Corporation ofhidia, Writ Petition No 3678/04 filed by Viaod Acharya, who was working as Assistaiit filanager (Q.C) in. the Food Corporation of India, Writ Petition No.4059/2004 filed by Maiiharaii Lal Gupta, wlio was workuig as Assistant Grade-III (Depot) aiid Writ Petition No.4104/2004 filed by NUkaiith. Pd Sharma, who was workuig as Assistaiit Grade-II (D) m tlie Food Corporation of ladia are beuig (ilsposed ofby this common order as iii all fhesevjrit petitions fhe mterpretation of Voluntary Retirement Scheme floated by the respondent-Corporation vide Circulai' No.EP-01-2004-16 dated 29.6.2004 is involved. 2. The pefcttioners' case ia these writ pefcitirins is fhat 4lie respondent-Corporation floated a Voluntary Retirement Scheaie for its employees vide its Crrctilar No.EP-Ql-2004-16 dated 29.6.2004 and time period of fhat scheme was three nionths i.e. from 29.6.2004 to 29.9.2004. tn the first iastaace, tlie petitioners, who were the aaaployees of fhe respondent- Corporation, submitted tlidr appUcations seekhig voluntai'y retiremeut in pursuaace of tiie said scheme. Howerer, later on the petitioiiers submitted appUcations for ^vithdrawal of their appUcattons seekmg vohintary retirement, but respondeat- Corporation did not accept tiie same, on the other hand accepted their applications for voluntary retu'emeat. Therefore, the petitioners have questioned thie legality, propriety aiid vatidity of fhe orders of respondetit-Corporation whereby the respondeiit- Corporation accepted the voluntaiy retirement appUcations of the Page3ofl9 ^ t.^ petitioners' inspite of the fact that same were witlidrawn by tliem. Tlierefore, tiie question iavolved ia ttiese petitions is tliat whetlier tiie action of tlie respondents-Corporation not perniitting the petitioners to witiidraw thdir appUcations for seektag voluntai'y retirement is illegal and arbitrary. 3. Brief facts leading to filiag ofthese writ petitions are tliat in. order to achiere maii-power rationalization with a vlew to mmimiziiig the cost of Food Corporation of hidia, thc Corporation had launched the Voluntaiy Retireoieat Scheme vide Aimexure P-1 dated 29.6,2004. Sub-pai-a (2) of Para 1 of the Preamble of fhe scheme etivisages that: "TTw Corporation will Imve the right not to gm^u volwUary retirement. to any ofofficers/officialsforthe wczsotzsto be recordsd in writing. " hi sub-para (3) of Para (1) it was niade ktiown to the employees of the respondent Corporation fhat: "the schsms will be in operation for a period ofthree f7U)fTths from the date ofissifjance ofcunular and tfw Corpofution zmll have right to accept ttw mqaestsfor volw^tary wfirernefit on tlw principle of [first corne jirst serued' foasis. Ti?ie scope ofthe scfwmewas ihat it was open to the permafwnt. emplcyyees of the Corporation i.e. Direct recndts, Food Transfe^^ees, wtw have opted either for Central Govt. pensionary benefits or for FCI retnal betwjits and to the absorbed deputatiorusts^ As to fhe eUgibiJity, itwas made clear tliat: "orily pennatwnt employees of the Corporation will be eligible and thsy may seek volisntary retirenie^ by giving three nwnths notice in writing to the con^petent austfwnty within tfie prescribed limit. However, the conyetent aut.hority was entitled to inake the paynwnt of twtice period of three mo^hs Page4ofl9 ^. ^ 'v or fortlw refT^ziningperiodoffwticepenod andwas entifled to accept the request for volwitwy retiwment frojn any date before the date of expiry of notice period^ In sub-pai'a (3) of Para-4 of Uie eligibtlity criteria it was m.ade clear titiat: "Applications for voluntafy retimment woidd be examined with rejerence to the pending cUsciplinary proceedings etc., ifany, against the enyloyees. The request jbr volzmtary retirement ii)oidd be considered keeping in mind the circumstances ofeach case with a view to erzsure t}icit it is extended to siich employees whose seruices cozdd be (Sispensed withoiit. detnmetU to the Cofporation. Care sheill be taken to ensure that luohlu skilled and cwaHfied officersand staffare not oiven the option. Funlwr, volwitary retirement. coidd he denied wiwre ciepartmejTtcd proceedings hcwe been imticzted or are contefnpkited or wfwre fhe proseciftipn is either conteinplated or has actually beenlawwlwd against the efnployee concenwd^ Para-7 of fhe schaaie relates about the competcat autliority, envisages fhat;- "the appoir^ting aiithorities for the purpose ofabove Scheme wozdd be the aifthorities to ciccept or wject an application for Volantary Retirement.v Para-8 relates to the procedure aiid sub-para (a) of Para-8 divisages that; "an eligible employee may subrmt an application for vohintary retirement andter this scherne to the competent aathority through proper channel in ths prescnbedproforma.}> Sub-para (b) ofPai'a-8 envisages tliat: Mthe volwitary wtirement Qftlie eniployee isnderthis scfwme tvoidd be subject to vigilmwe clearance.K: Sub-para (c) of Para-8 etivisages that; Page5ofl9 ^v ;:.:) "the scheme cloes not confer any right on any employee to }zave fus request for volvntary wtirement accepted. The Corpo^^ation will have jull discretionto accept or reject tharequestforvolyntary t^tirenierif. of any employee, keeping in viezo the aeruice record, orgardsational wquiwment and any other wlevarU factors in this wgard". Sub-para (d) of Para-8 eo-visages titiat, "once an eniployee subrmts his applicatijon for volvntary retirenient yncSer this sc}wme to the conipetent aiitfwnty, it sHall be treated as jinal and it is not open to ths employees to withdraw the scime. The competent aiithority within hotice periocl (3 moi^hs) shalltake the clecision to accept or reject the request and shall comniiirdcate fhe same to the official concetnsd." Later on, a ftirther clarificatioii was issiied on 22.9.2004 rsi which it has been iiieutioned fhat regarding schetae for voliuitary retirement issued vide Circular No.EP-Oli-2004-16 dated 29.6.2004 wliich provides that once aii employee volumite his appHcation for voluntary retirenieat under fhis schenie to the com.petent authority, it shall be treated as fiiial aiid it would not be open to employee to witficiraw the same, headquai'ters have received representations froni trade UiTions etc. requesting for mLodi&cation of the said provision so as to atlow the employees to withdraw thdi' requests for voluntary retireoient ia tiie wake of chaiige iti theb: circuiiistances aiid the said represeatations have been. exaoiuied ui consultation with Legal & Finance Divisions and the competent authority has decided fhat though the Schcme does iiot pcrm.it withdrawal of aii application for voluntary retiremeat, yet ftie discretion always would rest wititi the competent aufhority to accept or reject such aa application. AU tiie authorities arc accordiaRly advised to decide tfae applicajAte^ Page6ofl9 ^^) J >- for ^vithdi'awal of voluntarv retirement. Requests on tliese liues, on case-to-case basis. Therefore, by tlns cii'cular consideriag the demand of tarade Unions a rdaxatiou to ceitam extent was givea in sub-para (d) of Para-8 of the scheoie ia question ^?rhereby in the &c3t iiistance it was inade kao^vu to cvery eniployee fhat once aii employee subniitted his appUcation for voluntary retiremeiit that shaU be treated as jSiial aiid it is not open to the employee to %7ithdi'aw fhe same, But fhe employees were atlowed to niake an application for ^dthdrawal of tiidr applications seekmg voluntary reth'emeiit. However, discretion was left ^vith the conipeterit autiiority to accept or reject such witlidrawal appUcation. It was further added tliat the aufhority concerned would decide tlie wdfhdi'awal of vohintary retiremeiit reqiiest case to case basis. 4. Learned counsel for the petitioners placiiig reliaiice on the decision of fhe Hon'ble Apex Court ia the matfcer of Bankof Isidia assd others Versus 0,P. Swarnakar aiid others rq^orted m (2003) 2 Supreme Court Cases 721 ai'giied fhat in viw^ of the decision of tiie Hon'ble Apex Court eveii ia the existence of siib- para (d) of Pm'a-8 of the scheme th.e petitiouers were eatitled to \vithclraw tlidr ofifer for voluntary retirement before the sam.e was accepted and ia fliis niatter the petitionCTS had moved applications for witlidrawal of tlieir ofiEer for voluntai'y retlrem.eut before tlie sazae was accepted, tlierefore, thc respondent- Corporation ouglit to have accepted tlieir wifhdrawal appUcations aad aUowed them. to continue in senrices. As such, the impugned orders rejecting tiie petitioners' prayer for ^fhch'awal ofvoliintary retirement aiid accepting theii' vohuitary retirexnent was unjusti&ed, same is arbitrary aiid Uable to be quashed. They Page7ofl9 ^..', .^ ^. furtlier argued that iii vicw of relaxation givea by Circular Dated 22.9.2004 tiie petitioners? request for ^vifhctrawal ouglit to have been accepted. 5. On fhe other hand, Shii Kishore Bhaduri & Shri B.P. Gupta, learned counsel for the respondetit-Corporation argued fliat iti the first uistaiice fhe petitioners have not challenged tlie legaUty & validity of tiie scheiae, thCTefore, the petitioners are bound by tiie scheme itself aiid so long the relevant paras of tlie scheme are uot quashed the writ petitions are not mauitauiable. Second argzimeiit advaiiced by leai'ned counsel for fhe respondent- Corporation is that since ttie scheme ftoated by|ftie respondent- Corporation was a contract, the petitioners made offer ia respect to the invitation of the respoudent and fhat was accepted by the respondeiit Corporation therefore, clispiitc relates to tlie conti'actiial matter and in contractual inatters \vrit of mandamus caiiiiot be issued. Counsel for tiie respondents-Corporatioxi further argtied that siace it was iiiadc cleai' to the employees at the time of floating the scheme that once the appUcation for voluntary retirement is moved, the eniployees shaU not be eiititied to ^thdraw the same. Therefore, as per sub-para (d) of Pai'a 8 of the scheme the petitioners were not entifled to seek withdrawal of thdi' applications for voluntary retiremeat. They also submitted that even the clari&cation issued later on does not give aiiy riglit to the petitioners to wdthdraw their voluntary retii'enient appUcations^ as the discretion was left with the competeiit authority to consider tiie withdrawal application. However, the respondent authority was not bound to accq3t the appUcation for withdrawal ofvoluntary retlrement appUcation. The authoritywas requit'ed to take the decision case-to-case basis aiid they took tiie Page8ofl9 ^,^' ^ deeision, therefore, tlie petitioners were not entitled to claim any benefit even of the letter of clarification, as tlie sole discretion was wifh the corapetent authority. 6. Shri Gupta, counsel for respondetit-Corporation in W.P. No.4429/2004 placiag reUmice on the decision of thc Hon'ble Apex Court m the matter of Balram Gupta Vs. Union of India and another reported ia AIR 1987 8UPREMB COURT 3354 srgiied that fhe petitioner was not entitled to withdraw Ms applicatipn for seeklng voluntary retirement. 7. Having heard learned counsel for the parties, havmg perused tlie records aiid havhig considered ttie relevant provisions of scheme extracted iii flic eai'UCT part of tMs order.ifwelookm.to flie rdevant provisions of sub-para (d) of Para-8 of tlie scheme in question whereby tlie petitioners were made kno^m th.at once they submitted tlieir appUcations for voluntaiy retu'emeiit to flie competeiit authority, it shall be treated as fin.al an.d it is not open to fhe employee to ^dtlidraw the same. If we also look into the provisions of Voluntary Retii'emeat Scheine of the Nationalized Baiilcs which was under consideration ui O.P. Swai'nkar's case before tlie Hon'ble Apex Court, Para 10.5 of tiie schcme of nationalized baaks envisages that; "it will not be open for an employee to withdraw the recfaest nwde for volw^ary retirement -under the Scheme afier twving exewised sach option.?? Accordiagly, sub-para (d) of Para-8 of the ^cheaie m question and Para 10.5 of the NationaUzed Baiiks Voluntary Retiremeiit Scheme are paramateria aiid in that case the Hon'ble Apex Court after considering the provisions of Section 5 of tlie Contract Act and the scheaie held ftiat the eniployees were Page9ofl9 ^ ...-^. ^-. ^ entitled to witlidraw fheir oJBer s^ekmg voluntaiy retirement before the same was accepted provided they have not accepted any part of tlie beaefit under the Scheme. hi para 74 of the judgmeat the Hon'ble Apex Court held that: <<... tlw voluntary scfwme was not apmposal oran offer bist, merely an invitation to treat and applic^twns filed by the employees constitvted an {fofferv and once tJie application filed by the ejr^ployees is held to be an eeoffer!f, Section 5, inabsence ofany otfwr independerit binding contfuct or statute or statii?x>ty fzdes to the contrary wozdd come irdoplay^ la the abo-v-e judgmeot the Apex Court hdd that there was diffei'aice betw^een the Voluntary Retirement Scheoie fraoied by State Barik of ladia ou one haiid and the Vohintary Retiremeat Scheme framed by nationalized banks on fhe otliier. The difference jii tlie twro schemes was tliat iii tlie case of SBI voluntaiy retii'eaient scheoie, aii opportunity of fifteen days was given to the employee-appUcant to lAdthdraw from tiie scheme whereas under flie voluntaiy retiresiieiit schenie of tfae nationalized banks no such opportunity was given. In the case of voliintaiy retii'ement scheme framed by hationalized banks, Para 10.5 stipulated tliat it wiU not be open for aii employee to withdraw his request for voluntary retii'emeiit after havbig exercised such option. Iii flie circumstaaces, fhe Court took the view fhat the case of State Baiik of ladia stood on differeiit footiiig vis-a-vls schemes framed by other nationalized bariks. The Court in Paragt'aph 92 ofits decision held thiat: "92. HOWCVCT, fhe case of tlie State Bank of Iiidia staads slightly on a different footmg. Fh'stly, tiie State Baiik of hidia had not aoiesided tlie scheine. It, as noticed hereuibefore, evea permifted xvitlidrawal of Pagel0ofl9 ^-^ fr '(^) the appUcations af:erl5th February. The scheme floated by the State Baiik of Iiidia contained a Pai'a (Pai'a 7} layiag down the mode and laaiiLaer iii which tlie application for voluntary retirement shall be considCTed. The relevaiit Pai'a as refdTed to herenibefore creates aii eiiforceable right. In. the evaa of State Baiik failed to acUiei'e to its preferred poUcy, the same could have been specificaUy enforced by a coiirt of law. The same would, therefore, amoiuit to some consideration?? 8, Whereas, iri fhe case of nationalized banks where fhere was no provision to withdraw, the ivifhdi'awal miist be effected prior to acceptance by the Bank. Therefore, ui thle terms ofthe ratio laid down by the Apex Court, the employee is; ensured under SBIVES the right of withdrawal -tt/itliin the specified peric?d. It was held ui tliis case tliat the schem.e of SBI VRS is aii invitation to offer. Iii the case of State Bank of Patiala Vs. Rbmesh Chander Kanoji and others reported in (20041 2 Supreme Court Cases 651 while consideriag fhe scope of above judgment of O.P. Swai'iikai' (supra) the Hon'ble Apex Court held that "State Baiik of Patiala Voluntary Retirement Scheme is aii invitation to offd and not aii ojffer' aiid Pai'a-5 of flie said Voluntary Retirement Schenie iatcr- aMa states that scheme ^viU reniain opea duruig fhe period 15.2.2001 to 1.3,2001 whereas Rule 8 thereof provides for mode of acceptance by the management. It is m the Ught of Rules 5 and 8 that one has to read Para (9)(i) which provides for gen.eral conditions and undet' which it is provided fhat appUcation once raade caLrmot be ^vithdra^yii. hi Chitty on Contracts (28th Edii., p. 125), the learned auflior states fhat: "an offer may be withdfnwn at any time before it is accepted. 77iaf this f^ide applies even though the offeror has promised to keep the offer open for a Pagellofl9 ^^ p specified tune, for such a prormse is wisuppofted by cofisideration.?? Therefore, Para (5) of SBP VRS gives locus poenitentiae to tlie etnployee to withdraw by 1.3.2001 after which the inode of acceptaace contemplated by Para (8) of SBP VRS would apply aiid tlie baiik wiU proceed to vet the applications. As stated above, fhe Baiik needs time to ascertain its UabUity; it is required to fiiid out thc cost of creation of a separate fiind wluch in turn deperids on the nuiiiber of appUcations aiid ifthe employees are pcrm.itted to ^nthdraw after the date of closure it woiild be mipossible for the Baiik to implement the scheme. Therefore, Para (5) gives thne to the employee to ^dtiidraw by 1.3.2001 and the baiik is givea time of t^ro months thereafter to complete the designated mode of acceptance. Readitig Paras (5)/(8) aiid (9) (i) it is clear tliat employees are prechided from withdrawiag from SBP VRS after the closure ofthe scheiae on 1.3.2001. 9. In fhis background, ifwe look into tlle provisions oftlie scheme ui question floated by tiie respondent-Corporation, the object ofthe scheme was to achieve the man-power rationalization ^vitli aview to mtiiimiaiig the estabUshment cost of Food Corporatiou of Iiidia, tfie scheme was for the period of fhree montlis i.e. from 29.6.2004 to 29.9.2004. Therefore, in this case also, as has beeii held foy tlie Hon'ble Apex Court m the matter of State Baak of Patiala's case, the respondent-Corporation ou fiitiiig of the appUcations by its employees witlmi tiie prescribed time period of scheme was required to create fund aiid creation of fuud depeiids on tiie numbCT of applications; cost ofthe scheme; Uabitity wliicb tlie scheme would ioipose on tlie Corporation and such other factors. Therefore, m view of fhe above law laid by the Hon<ble Pagel2ofl9 "-'""^ f- Apex Court tlie petitioners hereiii were entitled to withdi'aw their appUcations for voluntaiy retirement before the expiry of tiie scheaie period i,e. 29.9.2004. Wifhdrawal appUcation made tliCTeafter was not vaMd for tlie reasons tliat at tlie end of tioie period of schem.e the Corporation was required to consider all the applications aiid to create fand for paymdit under the voluntary retiremetit schenie, as siich none of the employee was etititied to ^dthdraw his appMcation for voluntary retiremetit aftet' expiry of the time period given in tlie sclieme meanmg thereby the eaiployees were aiititled to ^yitiidrawm their voluntary retirement applications upto 29.9.2004 or before the; acceptaace of ttidi> appUcations for vohintary retiremeat, whiqhever was earlier m tLme, as the case raay be and fhereafter, they were precluded from. ^vithdrawiiig their appHcations. 10. Further if wc look into tiie sub-paraj (2) Para No.4 of the scheme iii question regarding eUgibility criteria, which laakes it clear that aiiy eniployee niay seek voluntary retiremcnt by giviiig fliree months notice iti ^vritmg to the competaat auttiority witlim tlie prescribed lim.it arid the competetit aufhority was authorized to make the paymeat of notice peiiod of three months or for tlie rem.ainitig period of notice period aad m.ay accept tiie request for voluntary retiremeat from aiiy date before the date of expiry of notice period. la such circum-staiices^ the employee seekkig voluiitary retireoient was required to make an appUcation for ^dthdrawal of fhe appUcation seefcbig voluntary retirenieat withia the prescribed time period of sdiem.e i.e., before expiry of time of the scheme or accq)tance of thelr vohintary retirement applications so as to enable the Corporation to assess how m.aiiy persons are to be allowed to seek voluntary retiremcnt because as Pagel3ofl9 ^••v 1f- per above clause fhe authority was required to take dccision by the last date of scheme regardmg acceptance of voluntary retu'emeat appUcation or before accq3tance of appUcation for voluntaiy retiremeiit, whichever was earUer ui time, as the case raay toe. As per sub-pai'a (2) of Pai'a 4 of tiie scheme the autiiority was entitled to accept the appUcation evea before the e^iry of notice period by ordCTiiig for payment for notice period, as the discretion was left witli tlie auth.ority. Therefore, in vicw of the judgmeat of tlie Hon'ble Apex Court in fhe niatters of O.P. Swai'iikar & State Baiik of Patiala ,(supra) the petitioners were entitled to seek ^dthdrawal of thdbr voluntary retii'emeiit, however, ^dtliiii the tmie period of the scheuie and not thereafter or before the