JUDGMENT

Ar. Lakshmanan, C.J.

1. These two writ appeals by the Visakhapatnam Port Trust are directed against the common order of the learned single Judge in W.P.Nos.13726 and 13816 of 2001 dated 22-7-2002 respectively allowing the writ petitions filed by the respondents who are the employees of the Port Trust declaring that the applications dated 14-3-2001 submitted by them seeking voluntary retirement stood withdrawn and consequently entitled to continue in service.

2. For convenience sake, the parties will be referred to by their status in the writ petitions.

3. Both the petitioners are working in Visakhapatnam Port Trust. While the petitioner in WP No. 13726 of 2001 (hereinafter referred to as 1st petitioner) joined as Lineman in the Electrical Section on 9-3-1968, the petitioner in W.P.No. 13816 of 2001 (hereinafter referred to as 2nd petitioner) joined as Wire Splicer on 22-12-1971. As on 14-3-2001, when they had opted for voluntary retirement, the 1st petitioner was working as Crane Operator in Floating Craft Section and had put in 33 years of service and the 2nd petitioner was working as Fitter Grade I and had put in 29 years of service.

4. It appears that the Ministry of Surface Transport, Department of Shipping, Government of India, New Delhi has introduced Voluntary Retirement Scheme (VRS) for the workers and employees working in all Major Ports and Dock Labour Boards, vide Circular dated 30-1-2001 which was open for the workers and employees up to 31-3-2001 and the same was extended till 30th June, 2001 vide Circular of the Ministry of Surface, Transport, New Delhi dated 24-4-2001. Pursuant to the said scheme, the petitioners herein had opted for VRS on 14-3-2001 with effect from 31-3-2001. However, the 1st petitioner claims to have withdrawn his application on 28-3-2001, followed by a reminder on 5-6-2001 and the 1st petitioner on 15-3-2001 followed by reminder on 6-6-2001. They were, however, not communicated with any orders and they continued in service till 6-6-2001 and 8-6-2001 respectively and they signed in the attendance registers till the said dates. However, the petitioners allege that they were instructed not to attend to their duties after the said dates. They claim that since they had withdrawn their applications for VRS before they were accepted and as they were not relieved from service, they are entitled to continue in service. The petitioners, therefore, sought for a writ of mandamus declaring that they are entitled to withdraw/cancel the VRS offer before it was given effect to and consequently direct the respondents to continue them in service with all consequential benefits.

5. The case of the respondents is that the applications of the petitioners for VRS were considered by the competent authority on 5-6-2001 favourably and were granted voluntary retirement with effect from 5-6-2001 and accordingly they were relieved from service on 5-6-2001 A.N. itself. It is further averred that once the application for VRS has been accepted, question of permitting them to withdraw the applications does not arise. The respondents denied in their counter that the 1st petitioner had withdrawn his application for VRS on 28-3-2001 and states that he had made representation only on 7-6-2001 after he was relieved of his duties and after the VRS was given effect to. Similarly, the respondents denied that the 2nd petitioner had withdrawn his application for voluntary retirement on 15-3-2001 and states that he submitted application only on 6/8-6-2001 after he was relieved from service.

6. The learned single Judge on a consideration of the material on record and the records produced before the Court including the attendance registers concerning the petitioners was of the view that the respondents did not relieve the petitioners of the duties on 5-6-2001 and they were not communicated the orders of acceptance of their applications for VRS. Therefore, a declaration was issued holding that the applications submitted by the petitioners stood withdrawn, consequently they are entitled to continue in service. It was also further declared that the order dated 5-6-2001 passed by the Chairman and the other consequential steps do not have the effect of putting an end to the service of the petitioners in the respondents' organisation. As regards the wages from 7-6-2001 (in the case of 1st petitioner) and from 9-6-2001 (in the case of 2nd petitioner) till the date of their joining into service, the learned Judge directed that the petitioners be paid the same subject to their establishing that they were not gainfully employed elsewhere and they were directed to refund the amounts, if any, paid under the VRS within two months from the date of assuming duties and the respondents were directed to permit them to resume duties forthwith.

7. We have heard Sn K. Srinivasamurty, learned senior Counsel appearing for the appellants and Sri P.V.R. Sarma, learned Counsel appearing for the petitioners.

8. Sri K. Srinviasamurty, learned senior Counsel submitted that the decision of the Supreme Court in Power Finance Corporation Limited v. Pramod Kumar Bhatia, , has no application to the facts of the case. The learned single Judge ought to have seen that in the alleged reminder letters dated 5-6-2001 and 6-6-2001 respectively the petitioners have not stated that they had already made applications withdrawing their applications for retirement under VRS. The learned single Judge, according to the learned Counsel, has not correctly applied the principles laid down by the Apex Court in Balram Gupta v. Union of India, , and in Power Finance Corporation Limited case. The learned Judge failed to appreciate that the applications of the petitioners for voluntary retirement had been accepted before they were retreated. He would further submit that the petitioners had signed the attendance registers subsequent to their relief from duties clandestinely and the finding of the learned single Judge that they were riot relieved is not correct. The observation of the learned Judge that physical prevention of the employee from attending to duties does not constitute relieving is also not correct. It was further submitted that the finding of the learned Judge that they had worked till 6-6-2001 and 8-6-2001, as the case may be, is factually not correct. The order dated 5-6-2001 accepting the voluntary retirement has not been challenged and the same remains in force. He, therefore, sought for dismissal of the writ petitions.

9. Sri P.V.R. Sarma, learned Counsel appearing for the writ petitioners strongly supported the order of the learned single Judge and submitted that the records would clearly show that the petitioners had worked subsequent to 5-6-2001 and the applications for VRS were withdrawn well before they were accepted. He would further submit that the order-dated 5-6-2001 does not constitute acceptance of offer of voluntary retirement unless the conditions therein are fulfilled and therefore the order impugned does not warrant interference by this Court.

10. There is no dispute that the writ petitioners submitted applications for voluntary retirement under VRS on 14-3-2001 and the management on 5-6-2001 accepted the same. Though the petitioners claim to have made applications seeking withdrawal of the said applications on 28-3-2001 and 15-3-2001 respectively no material has been placed on record evidencing the same. The learned single Judge has failed to notice that by the time the petitioners had filed the applications dated 5-6-2001 and 6-6-2001 respectively their request for voluntary retirement under the scheme made on 14-3-2001 was already accepted. It may also be noted that even in the letters submitted to the management on 5-6-2001 and 6-6-2001 seeking withdrawal of the applications dated 14-3-2001, it has not been stated that they had already made applications seeking withdrawal of their applications 14-3-2001. It is appropriate at this stage to refer to the letter filed by the 1st petitioner on 5-6-2001 seeking withdrawal of the application made for voluntary retirement. It reads thus:

To

The Deputy Chairman,

Visakhapatnam Port Trust,

Visakhapatnam.

(Through proper channel)

Sir,

Sub: Application for cancellation of V.R. under VR. Schemes.

Ref: My application for V.R. dated 14-3-2001.

1 Ch.V.V. Satyanarayana, Operator Emp.No. 077719 of F.C. Section beg to submit the following few lines for your kind consideration and cancellation of V.R.

Please refer to my application for V.R. dated 14-3-2001 and at the present my daughter's marriage proposed has been postponed due to higher studies and she still studying B. Tech., Engineering course in Andhra University. Therefore, I humbly request to cancel my V.R. under V.R. Scheme.

Thanking you,

Yours faithfully,

D/5-6-2001

Ch.V.V. Satyanarayana.

Though the petitioner has referred to the V.R. application both in the reference and in the letter, he has not referred to his letter-dated 28-3-2001 alleged to have been made seeking withdrawal of his application for voluntary retirement. Had he really made such an application on 28-3-2001, he would have definitely mentioned the same in the said letter. Further, it may be noticed that though the application was made on 5-6-2001, it was received in the Office of the Deputy Chairman only on 7-6-2001 by then his application for voluntary retirement was already accepted. Similar is the case in respect of the 2nd petitioner. Therefore, the conduct of the petitioners clearly show that it is only after they came to know that their applications for voluntary retirement were accepted, they wanted to withdraw their applications for voluntary retirement.

11. The decisions of the Supreme Court in Bal Ram Gupta and the Power Finance Corporation Ltd. (supra) have no application to the case on hand. The Apex Court in Power Finance Corporation case held that after filing of application for voluntary retirement under VRS, it is open to the employee to withdraw the same before it is given effect to and it is not open to him to withdraw the same subsequently. Even on 8-6-2001 when a letter was written requesting the management to withdraw the application, the 2nd petitioner has stated that the management on 5-6-2001 accepted the application. The learned single Judge failed to notice that the said tetter is indicative of the fact that the employee was aware that his application for voluntary retirement under VRS has already been accepted and there is nothing, which could give an impression that it was not accepted. The learned single Judge has noticed that on the same day i.e., the day on which the VRS Scheme was accepted, the employee did not come for work as alleged by him and he is making a specific request to the management to treat him as if he has withdrawn the application for VRS. The learned Judge should have also noticed that the employee had signed the attendance register subsequent to his being relieved from duties on 5-6-2001 clandestinely and therefore the finding of the learned Judge accepting the contention of the petitioner that he was not relieved is not correct. The finding of the learned single Judge that the petitioners had worked till 6-6-2001 and 8-6-2001 after their applications were accepted is not correct. The principle laid down in the judgment that physical prevention of the employee from attending duties does not constitute relief is not correct. It is also not relevant to the case of the respondents since it was they who had sought of retirement and the management conveyed the approval after due process. It is also further to be noticed that the order dated 5-6-2001 accepting the voluntary retirement has not been challenged and the said order remains in force

12. We may now consider the decision cited by the learned Counsel appearing for the writ petitioners in Power Finance Corporation Ltd. v. Pramod Kumar Bhatia which was heavily relied upon by the learned single Judge. This is also a case of voluntary retirement. In this case, the respondent therein applied for voluntary retirement pursuant to a scheme framed by appellant-corporation to relieve surplus staff. Initially, the appellant-Corporation by order dated 20-12-1994 accepted respondent's voluntary retirement with effect from 31-12-1994 subject to his clearance of outstanding dues, but subsequently the appellant-Corporation withdrew the scheme realising its mistake that the scheme was not applicable to it because there was no surplus staff. The respondent however in his letter dated 6-1-1995 requested the appellant-Corporation for deduction of his outstanding dues from the amount payable to him and also requested for formal relieving order with effect from 31-12-1994. The Supreme Court held that the order-dated 20-12-1994 was a conditional order. It did not become effective until the dues were paid. The respondent himself requested for adjustment of outstanding dues but no such adjustment was made. He therefore rightly understood that unless he was relieved of the duties of the post after the payment of the outstanding dues, the order accepting his voluntary retirement did not become effective.

13. It was further held that unless the employee is relieved of the duty after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end. Since the order accepting the voluntary retirement was a conditional one, the condition ought to have been complied with. Before the conditions could be complied with, the appellant withdrew the scheme. Thereby no vested right has been created in favour of the respondent.

14. The learned Counsel appearing for the appellants-respondent has strongly relied upon the decision of the Apex Court in State of Haryana v. S.K. Singhal, 1999 (2) SLR 249, wherein the Apex Court considered the decision in Power Finance Corporation. In this case also the Supreme Court was considering the case of an employee seeking voluntary retirement. Referring to Rules 2.2 and 5/32B of the Punjab Civil Service Rules, the Court held that if permission to retire is not refused within the period specified in Sub-clause (1) of Rule, 5.32B, the retirement shall become effective from the date of expiry of the period and that there is no provision in the rules to withhold permission in certain contingencies and the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice and that there is no requirement of an order of acceptance of the notice to be communicated to the employee nor it can be said that non-communication of acceptance should be treated as amounting to withholding of permission. In the case on hand, both the workmen have opted for voluntary retirement on 14-3-2001 with effect from 31-3-2001 and permission to retire from service was not refused before 31-3-2001 and the retirement was made effective from 5-6-2001 by accepting their applications.

15. After referring to the decisions of the Apex Court in Dinesh Chandra Sangma v. State of Assam, , BJ. Sehalt v.

State of Gujarat, , and Union of India v. Sayed

Mazaffar, 1995 Supp (1) SCC 76, the Apex Court held that if the right to voluntary retirement is conferred in absolute terms as in Dinesh Chandra Sangma's case by the relevant rules and there is no provision in rules to withhold permission in certain contingencies the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice. If, however, as in BJ. Sehlat 's case and as in Sayad Muzaffar Mir's case, the concerned authority is empowered to withhold permission to retire if certain conditions exist, viz., in case the employee is under suspension or in case a departmental inquiry is pending or is contemplated, the mere pendency of the suspension or departmental inquiry or its contemplation does not result in the notice for voluntary retirement not coming into effect on expiry of the period specified. It was observed what is further needed is that the concerned authority must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in BJ. Sehlat's case and in Sayed Muzaffar Mir's case before the expiry of the notice period. It was held that consequently, there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that noncommunication of acceptance should be treated as amounting to withholding permission.

16. In the aforesaid decision, the Apex Court has also considered the decision in Power Finance Corporation Ltd., case and was of the view that the said observations run contrary to the three Judges judgments rendered in Dinesh Chandra Sangama and BJ. Sehlat cases. In this view of the matter, we are inclined to follow the decision of the Apex Court in State of Haryana v. S.K. Singhal.

17. Mr. Srinivasamurty has also relied upon the decision of this Court in General Manager, Telecom District v. Lalithamma, , rendered by a Division Bench of this Court comprising one of us viz., Dr. AR. Lakshmanan, CJ and Dr. G. Yethirajulu, J. In this case, the Court has perused the notice of the respondent therein for voluntary retirement dated 2.8.1999 in which she has given the reasons as to why she has made the application for voluntary retirement. In this letter, she requested the General Manager to allow her to retire either from the date of completion of the stipulated period of three months or as early as possible. The three months period expired by 2-11-1999. However, by letter dated 20-9-1999, she has requested for withdrawal of notice for voluntary retirement addressed to the General Manager stating that due to the change of domestic circumstances and on reconsideration she is desires to withdraw the notice of voluntary retirement submitted by her on 2.8.1999. The Division Bench referring to Sub-rule (4) of Rule 48-A of the Rules which enables the Government Servant, who has elected to retire under the said rule to withdraw the request for voluntary retirement before the intended date of her retirement, held that the order passed by the authority rejecting the request of the respondent to withdraw the voluntary retirement application is bad in law and against the tenor of Sub-rule (4) of Rule 48-A of the Rules. In the said case before the expiry of three months period, the employee has a right to withdraw the same and accordingly, the respondent withdrew the request for voluntary retirement and as such the authorities have not considered the request of the respondent therein for withdrawal of voluntary retirement in accordance with the rules and they have failed to consider the same in its proper perspective.

18. In the case on hand, the writ petitioners have not withdrawn the application for voluntary retirement before expiry of the period mentioned in their applications. Therefore, the petitioners, in our considered opinion, are not entitled to withdraw their applications for voluntary retirement after the management on 5-6-2001 accepted their applications seeking voluntary retirement under the scheme.

19. The decision relied on by the learned Counsel for the petitioners in Shambhu Murari Sinha v. Project and Development India, , arises under the Industrial Disputes Act. In this case it was held that resignation though accepted could be withdrawn before acceptance is made effective by relieving the employee from service. The facts and circumstances obtaining in the instant case would clearly go to show that acceptance was made on 5-6-2001 and that they signed in the attendance registers subsequent to their being relieved from service clandestinely.

20. The contention of the learned Counsel for the petitioners that since the petitioners were allowed to continue till 6-6-2001/8-6-2001 and as there is no communication of the order of acceptance by the appellants before withdrawal of their applications for voluntary retirement, the petitioners are entitled to withdraw their applications for voluntary retirement has no merit. The retirement can be made effective at any time after 31-3-2001 and by order dated 5-6-2001 their applications were accepted. The non- communication of the order would not vitiate the acceptance made by the authorities on 5-6-2001. It was further contended that the order which is not communicated to the affected party is no order at all and the jural relationship of the employee and employer does not come to an end and therefore the petitioners are entitled to withdraw the VRS offer before it is made effective by passing and communicating their decision of acceptance. This contention has also no merit in view of the decision of the Apex Court in State of Haryana v. S.K. Singhal, which says that if permission to retire is not refused within the period specified in the notice, the retirement shall become effective automatically from the date of expiry of that period specified in the notice.

21. Further, as already observed, the petitioners have failed to show that before their applications seeking for voluntary retirement were accepted by the management on 5-6-2001, they filed the applications seeking withdrawal of their request for VRS. The applications alleged to have been made on 15-3-2001 and 28-3-2001 are not produced before the Court. In the absence of the same, the appellants cannot be found fault with when they accepted their request for VRS with effect from 5-6-2001 A.N. The moment an order is passed accepting their request for VRS under the scheme mere signing in the attendance registers is of any consequence. It may be that the order passed on 5-6-2001 accepting the request of the petitioners for voluntary retirement was not communicated to the Timekeeper immediately and therefore the petitioners might have been allowed to sign in the registers as usual. In our considered opinion, that will not vitiate the order of acceptance passed by the appellants on 5-6-2001. We are, therefore, not inclined to approve the observations made by the learned single Judge in this regard.

22. The result of the aforesaid discussion, therefore, is that the order of the learned single Judge cannot be sustained and the writ appeals deserve to be allowed. Accordingly, the impugned order of the learned single Judge is set aside and the appeals are allowed. There shall be no order as to costs.