# Avinash Kumar Yadav v. The Executive Director, I.T.I. Ltd.,Allahabad & another

- **Citation:** (2000) 3 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1997-12-09
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/avinash-kumar-yadav-v-the-executive-director-i-t-i-ltd-allahabad-another-39190
- **Pages:** 4

## Text

3All] Avinash Kumar Yadav V. The Executive Director, I.T.I. Ltd.,Allahabad & another 314
record to show that the appropriate
remedy against the adjournment orders
passed by the trial court was pursued by
the plaintiff. Considering all the aspect of
the matter, we are inclined to dismiss the
writ petition.

10. We, however, observe that in the
event an application is moved for early
disposal of the suit before the appropriate
forum, appropriate steps should be taken
by the court below and the suit should be
disposed of as early as possible without
further loss of time.

11.

The
writ
petition
stands
dismissed, with the observations noted
above.

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By the Court

1. Petitioner, who was employed on
the
post
of
Machinist
under
the
respondents, responded to the Voluntary
Retirement
Scheme
floated
by
the
respondents by making application dated
29.11.1997. In which the voluntary
retirement was sought to be made
effective
with
prospective
date
i.e.
31.12.1997 in terms of the date prescribed
under the Scheme. However, before the
voluntary retirement could take effect, the
petitioner, it would transpire, made an
application on 9.12.1997 seeking to
withdraw his offer of voluntary retirement
. This request of the petitioner was turned
down by the respondents vide letter dated
29.12.1997 and by order impugned herein
and in which is embodied the letter dated
30.12.1997 the petitioner was intimated
that this application under voluntary
315 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
Retirement Scheme has received the seal
of approval for his voluntary retirement
with
effect
from
31.12.1997
and
accordingly, he was relived of his duties
in the company with effect from the
aforesaid date.

2. I have heard Sri Ganga Prasad,
appearing for the petitioner and Sri P.K.
Mukherji for the respondents. The main
brunt of the contention canvassed by Sri
Ganga Prasad is that since the petitioner
had withdrawn the application seeking
voluntary retirement before the effective
date, the respondents were not justified in
accepting the application, which has
already been withdrawn by the petitioner
Sri P.K. Mukherji appearing for the
respondents in opposition, urged that the
petitioner had no right to withdraw his
application as per para (11) of the I.T.I.
Circular No. 1017/97 dated 3.11.97 and
that apart the petitioner, urged the learned
counsel accepted the terminal benefits and
thereby acquiesced to the order dated
29.12.1997 by which his request made
vide
application
dated
9.12.1997
embodying request for cancellation of his
option for voluntary retirement, was
'regretfully' not acceded to by the
Management and hence, proceeds the
submission
of
Sri
Mukherji,
the
petitioner is estopped from canvassing the
correctness of the impugned order for the
petitioner , it has been submitted that the
terminal benefits flowing from voluntary
retirement
Scheme
i.e.
compensation
amount to the tune of Rs. 1,8,237/-
besides Rs. 2873.00 towards encashment
of un-availed leave given vide cheques
dated
11.3.1998.
and

22.3.1998.
respectively were accept by the petitioner
in direct financial straits stemming from
the reasons that his services having come
to an end with effect from 31.12.1997 he
had no wherewithal to fall back upon to
support himself and his family.

3. In Balram Gupta v. Union of
India & Ors1. It has been held by the
Apex Court that notice of the voluntary
retirement, has to be ranked in parity with
a letter of resignation and it can be
withdrawn at any time before retirement
takes effect not with standing any rule
providing for obtaining specific approval
of the concerned authority as a condition
precedent for withdrawal of notice. The
Apex Court has held that a certain amount
of flexibility is required and if such
flexibility does not jeopardise government
or administration, administration should
be graceful enough to respond and
acknowledge the flexibility of human
mind and attitude and allow withdrawal
of the letter seeking voluntary retirement
in the facts and circumstances of the case.

4. In Union of India v. Gopal
Chandra Misra2, which was a case of a
High
Court
Judge
withdrawing
his
resignation before the effective date, the
Supreme Court held that resignation can
be withdrawn at anytime before it takes
effect i.e. before it effects the termination
of the tenure of the office/post or
employment. The principle aforestated
received its echo in Balram Gupta's case
and was held to be applicable to a case of
voluntary retirement under a Scheme
providing for voluntary retirement. In
J.N. Srivastava v. Union of India and
Anr.,3 the principle laid down in Balram
Gupta's case received reinforcement and
was followed holding that withdrawal of
voluntary retirement before the intended

1 1987 (supp.) SCC 228
2 AIR 1079 SC 604
3 1998 (9) SCC 559
3All] Avinash Kumar Yadav V. The Executive Director, I.T.I. Ltd.,Allahabad & another 316
date of retirement is permissible. In that
case also, the voluntary retirement notice
dated 3.10.1989 was to come into effect
from 31.1.1990 Though the authorities
accepted the proposal on 2.11.1989 but
before the effective date i.e. 31.1.1990
could reach , the appellant therein wrote a
letter to withdraw his voluntary retirement
proposal . The said request for withdrawal
of voluntary retirement proposal was not
accepted
by
the
employer
vide
communication dated 26.12.1989 and,
therefore, the employee had to give up the
charge of the post as per his memo
relinquishing the charge. The employee,
however, went to the Tribunal but the
Tribunal gave no relief to him holding
that voluntary retirement had come into
force on 31.1.1990 and the appellant
therein had given up the charge of the
post as per his memo relinquishing the
charge and consequently, he has estopped
from
withdrawing
his
voluntary
retirement notice, the Supreme Court held
as under:
 " It is now 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 paenitentia to withdraw the
proposal
for
voluntary
retirement............ It is to be noted that
once the request for cancellation of
voluntary retirement was rejected by the
authority concerned on 26.12.1989 and
when the retirement came into effect on
31.1.1990 the appellant had no choice but
to give up the charge of the post to avoid
unnecessary complications."

The
Supreme
Court
held
that
the
reasoning of the Tribunal could not be
'sustained' and accordingly, the order of
the Tribunal was set aside and the
authorities were directed to treat the
petitioner to have validly withdrawn his
proposal for voluntary retirement with
effect from 31.1.1990. The appellant
therein was held entitled to arrears of
salary and other emoluments including
increments and to get pensionary benefits
refixed accordingly " Subject to the
adjustment of any pension amount and
other retirement benefits already paid to
the appellant in the meantime upto the
date of his actual superannuation"

5. In Power Finance Corporation
Ltd. V. Pramod Kumar Bhatt4, it was
held that " jural relationship of employer
and employee does not come to an end till
employee
is
actually
relieved."
In
Pukhraj Mantri v. U.P. Co. operative
Spinning Mills. Federation Ltd.5, the
employee had given resignation to be
effective from a prospective event but
before such event could happen, he
withdrew resignation. Relying upon the
decision of the Supreme Court in Union
of India v. Gopal Chandra Misra
(supra); M/S.J.K. Cottons & Co. Ltd.
V. State of U.P. AIR 1990 SC 1808; and
Punjab National Bank v. P.K. Mittal
AIR 1989 SC 1083, it was held by this
court that resignation tendered by the
petitioner
therein could not become
legally effective before expiry of the
notice of three month as visualised in byelaw no 6 of the U.P. Textile co-operation
General Service Condition Bye-laws and
since the resignation was withdrawn
before it could become effective both
according to the bye-law and the letter
seeking resignation and therefore, the
petitioner therein was held to be deemed
tin
service
of
the
respondents
In

4 JT 1997 (4) SC 300
5 (1992) UPLBEC 664
317 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
 Shambhnu
Murari
Sinha
v.
Project and Development India and
Anr.6, Option of voluntary retirement
was exercised by the appellant therein
vide letter dated 18.10.1995 and though it
was accepted by the management vide
their letter dated 30.7.1997 the appellant
was not relived form service and he was
father allowed to continue in service till
26.9.1997,
which
for
all
practical
purposes was held to be "effective date"
as it was on this date that he was relived
from service and since in the meantime,
the
appellant
therein
had
already
withdrawn
the
offer
of
voluntary
retirement vide letter dated 7.8.1997 the
Apex Court held that the question was
squarely covered by the decision in
Balram Gupta; J.N. Srivastava; and
Power Finance Corporation (Supra)
and accordingly, the appeal of the
employee was allowed by the Apex
Court and he was held entitled to continue
in service with all consequential benefits.

6. In my opinion, the question raised
herein is squarely covered by the decision
aforestated and the mere fact that the
petitioner had accepted the terminal
benefits in the shape of retirement
compensation
and
leave
encashment
would not foreclose him from asserting
his right. The order refusing to accede to
the request of the petitioner withdrawing
his
option
for
voluntary
retirement
contains no reasons and is , therefore,
unsustainable.

7. As a result of foregoing
discussion, the petition succeeds and is
allowed.
The
impugned
orders
are
quashed. The respondents are directed to
re-situate the petitioner in his job attended

6 JT 2000 (6) SC 359
with all consequential benefits subject, of
course, to the condition that the amount
already received by the petitioner as
terminal
benefits
i.e.
retirement
compensation and leave encashment will
be credited to the arrears which may be
admissible to the petitioner and if it still
falls short, the same shall be liable to be
sub-ducted from the future salary of the
petitioner.

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