Sophy John v Fertilisers and Chemicals Travancore Ltd.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WA.No. 520 of 2007() -------------------AGAINST THE ORDER IN RP.1004/2006 IN WPC 15397/04 .................... ## APPELLANT(S): PETITIONER: ------------------------- SOPHY JOHN (FORMERLY HSA GRADE I, FACT SCHOOL, AMBALAMEDU, BADGE NO.11222), PANANTHANATHU HOUSE, HILL VALLEY GARDENS, THIRUVANKULAM P.O., ERNAKULAM DISTRICT. BY ADV. SMT.P.V.ASHA ## RESPONDENT(S): RESPONDENTS: --------------------------- 1. THE FERTILISERS AND CHEMICALS TRAVANCORE LTD., REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, UDYOGAMANDAL,ELOOR 2. THE CHIEF MANAGER (PERSONNEL), FACT, COCHIN DIVISION, AMBALAMEDU, ERNAKULAM. ADV. SRI.A.K.JAYASANAKAR NAMBIAR,SC FOR FACT SRI.E.K.NANDAKUMAR FOR R1 & 2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------W.A. No.520 of 2007 ---------------------------------------------Dated 6[th] January, 2010.** ## **J U D G M E N T** ## _**Balakrishnan Nair, J.**_ The appellant is the writ petitioner. The brief facts of the case are the following : The appellant joined the High School run by the respondents, as HSA Grade II, on 19.11.1987. While so, the company landed in the red and it decided to prune the staff in its establishments to reduce its financial liabilities. So, it was decided to hand over the school to a private educational agency. The appellant and others were informed of the same by Ext.P3 circular dated 28.2.2004. Later, they were served with Ext.P4 communication dated 24.3.2004, giving them an opportunity to avail voluntary retirement. The Voluntary Retirement Scheme was put operational from 24.3.2004 to 29.3.2004 for the said purpose. The appellant submitted her application to retire voluntarily from service, pursuant to Ext.P4, WA NO.520/07 2 on 29.3.2004. Later, on the next day itself, the appellant submitted Ext.P5 representation, stating that she is withdrawing her application for voluntary retirement, on 30.3.2004. But, ignoring that representation, by Ext.P6 order dated 8.4.2004, the competent authority accepted her application dated 29.3.2004 for voluntary retirement. The benefits payable under the Voluntary Retirement Scheme were remitted in the bank account of the appellant on 15.4.2004. The petitioner/appellant preferred this writ petition on 19.5.2004, challenging Exts.P4 and P6. She wanted retention in service. The petitioner/appellant submitted that the persons who did not opt for the Scheme were deployed in other departments of the first respondent Company, in posts appropriate to their qualification, without affecting the emoluments actually drawn by them as teachers. She claimed a similar treatment. Once the application for voluntary retirement is withdrawn by Ext.P5, the same could not have been accepted, it is submitted. But the learned Single Judge disposed of the writ petition along with a few other writ petitions, without considering the contention of the appellant that Ext.P6 should not have been WA NO.520/07 3 passed, in view of Ext.P5. Though she attempted a review petition, that also did not yield any results. In view of the above position, this writ appeal is preferred, challenging the judgment of the learned Single Judge in the writ petition as well as the order in the review petition. 2. The learned counsel for the appellant pointed out that in view of the decisions of the Apex Court, the application submitted for voluntary retirement can be withdrawn, before the same is accepted. In this case, on the next day of submission of the application, the appellant filed the application for withdrawing the same. The said fact is admitted by the respondents in their counter affidavit filed in the writ petition. In support of her submission, the learned counsel for the appellant relied on the decision of the Apex Court in **Food Corporation of India and others v. Ramesh Kumar** (2007(8) SCC 141). 3. We heard the learned counsel for the respondents. The learned counsel submitted that an appeal filed by similarly placed persons has been dismissed by Annexure B judgment, produced along with the counter affidavit filed by the WA NO.520/07 4 respondents in this appeal, on 13.10.2009. It is also pointed out that the appellant has already received the amounts paid and therefore, she cannot turn round and claim that her application should not have been accepted. 4. Ext.R1(a) is the original scheme for voluntary retirement notified by the respondents. Later, by Ext.P4, the scheme was revived for a period of one week from 24.3.2004 to 29.3.2004, in order to enable the appellant and others to avail voluntary retirement, if they think so. In the said scheme, we find that there is nothing which stands in the way of withdrawing the application already submitted. Therefore, once the appellant has submitted Ext.P5 for withdrawing the application for voluntary retirement, the competent authority should not have passed Ext.P6 accepting the same. This view is fully in accordance with the decision of the Apex Court in **Food Corporation of India's** case (supra). In the said decision, it was held as follows :- “8. Now adverting to the present Scheme of Food Corporation, Para 8 clearly stipulates that the incumbent has no right to revoke the same and the Management will decide the same within three months. That means the Management still has three months' time to consider and decide whether to act upon the offer given by the incumbent or not. But if the incumbent revokes his offer before the Corporation accepts it then in that WA NO.520/07 5 case, the revocation of the offer is complete and the Corporation cannot act upon that offer. In the present case there is one more additional factor which is that the Management has to take a decision within three months. Therefore, once the revocation is made by the incumbent before three months then in that case the Corporation cannot act upon the offer of voluntary retirement unless it is accepted prior to its withdrawal. In the present case, it is clear that the incumbent had given an offer for voluntary retirement on 13.9.2004 and he revoked his offer on 27.9.2004 but the same was accepted on 9.11.2004 i.e. after the revocation of his offer. In view of the law laid down by this Court in _State Bank of Patiala_ the incumbent has already revoked his offer before it could be accepted, Therefore, in this view of the matter, the approach of the High Court appears to be correct and does not require any interference. The revocation made by the incumbent on 27.9.2004 of his offer of retirement cannot be acted upon as he has revoked it before the Corporation could act upon it. Hence, we are of the opinion, that the view taken by the High Court is correct. Consequently, all the three appeals are dismissed but without any order as to costs. In view of the above judgment of the Apex Court, we are of the view that the appellant is entitled to succeed. Accordingly, Ext.P6 is quashed. It is declared that the appellant continued in service notionally without break, but she is not entitled to get any arrears of wages based on this declaration. The appellant shall repay the terminal benefits received by her with 9% interest within one month from today. In that event, the respondents shall engage her in service as other teachers, who did not opt for the voluntary retirement, are engaged. Orders in this regard will be passed within one month from the date of payment of the WA NO.520/07 6 terminal benefits by the appellant, with interest. The writ appeal is disposed of as above. ## **K.BALAKRISHNAN NAIR, JUDGE.** **C.T.RAVIKUMAR, JUDGE.** **tgs** ## **K.BALAKRISHNAN NAIR &** **C.T.RAVIKUMAR, JJ.** **---------------------------------------------W.A. No.520 of 2007 ----------------------------------------------** **J U D G M E N T** **Dated 6[th] January, 2010.**