KHURSHID AHMAD LOLO Vs. GOVT OF INDIA
LAWS(J&K)-1999-8-23
HIGH COURT OF JAMMU AND KASHMIR
Decided on August 12,1999

Khurshid Ahmad Lolo Appellant
VERSUS
GOVT OF INDIA Respondents

JUDGEMENT

SYED BASHIR -UD -DIN, J. - (1.) APPELLANT Upper Division Clerk (U.D.C) of National Co -operative Consumers Federation of India Ltd. (hereafter Federation), applied on 18 -11 -1991, for voluntary retirement, effective from 1 -4 -1992. This he did pursuant to Voluntary Retirement Scheme circulated by Federation for its employees in 1991. Petitioner alleges that he subsequently withdrew the offer of voluntary retirement and, therefore, continued as U.D.C of the Federation. In the meanwhile, Federation issued orders accepting his voluntary resignation effective from 1 -4 -1992 and paid him compensation as assessed under the scheme. His claim(s) to provident fund and gratuity on process were taken up with Provident Fund Commissioner and Life Insurance Corporation. Petitioner challenged this order of April 10, 1992 and has prayed for its quashment. Besides mandamus against the Federation is solicited for continuation of the services of petitioner as U.D.C with the Federation as its Srinagar Branch, with all benefits flowing from such continuous service. A Single Bench of this Court, dismissed the writ petition "for revoking his offer of voluntary retirement" as meritless and rejected his prayer for taking him back in the service of Federation. But at the same time issued directions to the concerned functionaries including Life Insurance Corporation and Provident Fund Commissioner for examining and proceeding the case of petitioner for release of gratuity, post pensionary benefits and provident fund within six months. Against this order of July 31, 1997 of the Single Bench, petitioner has come forward to challenge the judgment and order in this Letters Patent Appeal.
(2.) BEFORE dealing with the contentions focused on in the arguments by the counsel for the parties, following additional facts (succinctly stated) need to be taken note of: -
(3.) PETITIONER joined the Federation on 19 -12 -79 and rose to the rank of U.D.C. The Federation circulated a Voluntary Retirement Scheme for its employees in September 1991 and supplemented it by circulated order dated 31 -10 -1991. Employees of the Federation who gave option to seek voluntary retirement, were to avail benefits under the said voluntary scheme as per its provisions. Under the Scheme, NCCF Voluntary Retirement Rules of 1991 effective from 25 -10 -1991, were framed. All categories of employees of the Federation were covered by these rules. The management has been given right to accept or reject the request of an employee for voluntary retirement under the Scheme. The interested employee is supposed to apply on prescribed form (Annexure -A to NCCF Voluntary Retirement Rules 1991). The case is to be sent to the Managing Director for orders, after it is processed in the Personnel Department of the Federation. The scheme provides benefits in the nature of lumpsum compensation, gratuity, encashment of leave, provident fund, retirement TA and notice pay. In terms of the rules, the Managing Director is competent authority to accept the request for voluntary retirement from an employee of the Federation. The petitioner applied on the prescribed proforma for voluntary retirement. He sought the voluntary retirement from the service of Federation from 1 -4 -1992. The voluntary retirement application was submitted to Managing Director of the Federation with 19 -11 -1991 as the date of submission of this application. Petitioner alleges that he moved an application on 7 -4 -1992, addressed to the Managing Director of the Federation at New Delhi, conveying his decision that his earlier application of 18 -11 -1991, for voluntary retirement under scheme, may be treated as cancelled. The respondent/ Federation has denied that it ever received this communication of Shri Lolo till his voluntary retirement offer was accepted by the Federation. The Branch Incharge of the Federation at Srinagar, issued an office order on 10 -4 -1992 with copy endorsed to petitioner intimating him that his application for voluntary retirement from the service of Federation, has been accepted by the competent authority from 1st of April 1992, the date indicated by the petitioner and, therefore, he is relieved from 10 -4 -1992. Besides a cheque for lumpsum compensation for Rs. 36254.66 was also endorsed to the petitioner. Petitioner has challenged this office order. Shri Lolo addressed another letter dated 22 -4 -1992 to the Managing Director of the Federation requesting that his application for voluntary retirement having been accepted, his request for efficiency bar may be cleared and arrears paid to him after reckoning his basic pay at Rs. 640/ -. He also acknowledges payment of the above said lumpsum compensation. Subsequently communications also show that the petitioner has been requesting the Federation for release of other benefits under the scheme, after his efficiency bar is cleared and his basic pay as on the date of retirement is treated as Rs. 640/ - (Annexure z 19, z 21). He has also conveyed to the Federation that incase this demand of his is not acceded to, he will join back the Federation as U.D.C and has even suggested date(s) towards that end. The counsel for appellant submits that the voluntary retirement application submitted by the appellant was conditional, in so far as the offer was subject to clearance of efficiency bar of the petitioner and that the retirement was effective from future stipulated date of April 1, 1992. The petitioner opted to retire under the scheme as he contemplated to start his own business. Having failed in the business and his retirement not having been accepted by the Federation, he addressed a letter on April 7, 1992 to the Managing Director of the Federation, for treating his application for voluntary retirement, under the scheme as cancelled. Instead he was informed that his voluntary retirement has been accepted from 1 -4 -1992 and was relieved on 10 -4 -1992. The lumpsum compensation was paid to him without hearing his case for efficiency bar. The Federation thus not having fulfilled the conditions, petitioner was within his rights to cancel the voluntary retirement and Federation was under legal duty to treat him in service as U.D.C of the Federation. In the premises the counsel submits that the petitioner was within his rights to withdraw the voluntary retirement offer before it was accepted, notwithstanding that the retirement was to take effect from a future stipulated date. He has referred to AIR 1969 SC 180; AIR 1981 SC and 1983(2) SLJ 332.;


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