# Shri Kant Arya v. M/s New Victoria Mills and others

- **Citation:** (2006) 1 ILRA 456
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-03
- **Case number:** Civil Misc. Writ Petition No. 16587 of 2004
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-kant-arya-v-m-s-new-victoria-mills-and-others-40864
- **Pages:** 6

## Headnote

Constitution of India Art. 226-Voluntary
Retirement-Petitioner
applied
forprovided entire dues given modified
voluntary retirement Scheme on 12.7.023.3.03 petitioner applied for cancellation
of the condition offer as the Respondents
failed to clear the dues-and continued
working-held-entitled
for
every
consequential benefits-if New Victoria
Mills Kanpur closed and such scheme for
absorption of others employees is in
existence-petitioner
also
may
be
considered.

Held: Para 7

Having heard learned counsel for the
parties and considering the facts and
circumstances of this case, in my view
this writ petition deserves to be allowed
and the impugned order dated 14.7.2003
passed by the respondent M/s New
Victoria Mills, Kanpur is liable to be
quashed only in so far as it relates to the
case of the petitioner, and that the
petitioner would be entitled to all
consequential benefits.
Case law discussed:
2002 AIR SCW-1165
2003 AIR SCW-313
AIR 1999 SC-1571
2003 FLR-I
2003 AIR SCW-2989
2004 SCC (L&S)-428

## Text

456 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
dated 3.11.2004 passed by learned Single
Judge in contempt petition no. 2101 of
2003 Ram Babu Dwivedi Vs. Smt.
Rama Devi and others, is wholly
erroneous and not sustainable in the eyes
of law and is liable to be set aside.
Accordingly the same is set aside by this
court. The contempt notice issued against
the appellant is hereby discharged.
In the result, the appeal succeeds and
allowed.

There shall be no order as to costs.
Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 16587 of 2004

Shri Kant Arya

...Petitioner
Versus
M/s New Victoria Mills and others

 ...Respondents

Counsel for the Petitioner:
Sri P.K. Tripathi

Counsel for the Respondents:
Sri J.N. Tiwari
Sri Gopal Misra

Constitution of India Art. 226-Voluntary
Retirement-Petitioner
applied
forprovided entire dues given modified
voluntary retirement Scheme on 12.7.023.3.03 petitioner applied for cancellation
of the condition offer as the Respondents
failed to clear the dues-and continued
working-held-entitled
for
every
consequential benefits-if New Victoria
Mills Kanpur closed and such scheme for
absorption of others employees is in
existence-petitioner
also
may
be
considered.

Held: Para 7

Having heard learned counsel for the
parties and considering the facts and
circumstances of this case, in my view
this writ petition deserves to be allowed
and the impugned order dated 14.7.2003
passed by the respondent M/s New
Victoria Mills, Kanpur is liable to be
quashed only in so far as it relates to the
case of the petitioner, and that the
petitioner would be entitled to all
consequential benefits.
Case law discussed:
2002 AIR SCW-1165
2003 AIR SCW-313
AIR 1999 SC-1571
2003 FLR-I
2003 AIR SCW-2989
2004 SCC (L&S)-428

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioner was initially
appointed in the year 1985 as Supervisor
Maintenance on probation in Atherton
Mills of the National Textile Corporation.
Thereafter vide order dated 27.7.1991 he
was transferred to New Victoria Mills of
the National Textile Corporation at
Kanpur. He joined at New Victoria Mills,
Kanpur on 29.7.1991. In the year 2001
some dispute arose with regard to his
provident fund account. According to the
petitioner, his employer (respondents) had
wrongly got an account opened in the
name of Shri Kant Misra instead of the
petitioner's actual name which was Shri
Kant Arya. The provident fund amount of
the petitioner was thus deposited in a
wrong name.

2. However, before the said dispute
could be resolved, the Respondent-Mill
came up with a Modified Voluntary
Retirement Scheme. By his offer dated
12.7.2002
the
petitioner
opted
for
1 All] Shri Kant Arya V. M/s New Victoria Mills and others
457
voluntary retirement under the said
scheme but subject to the condition that
his entire dues (which included the
provident fund dues) may be paid along
with his said resignation letter. No formal
order accepting the offer of the petitioner
had been passed by the respondents. In
the meantime, on 3.3.2003, the petitioner
wrote to the Respondent-Mill that since
his provident fund account had not been
regularized and the amounts had not been
deposited by the employer in his account,
and further that after acceptance of his
resignation, the realization of the said
amount would become impossible, the
petitioner wrote that his conditional offer
under the Modified Voluntary Retirement
Scheme may remain in abeyance. A
further request was made by the same
letter that his provident fund account may
be regularized within 30 days. The
respondents again did not thereafter send
any
reply/communication
to
the
petitioner. However, vide letter/order
dated 28/31.5.2003 passed by Respondent
no.1 M/s New Victoria Mills, the cut off
date
for
the
acceptance
of
the
resignation/offer of the petitioner and
three other employees under the Modified
voluntary Retirement Scheme was given
as 1.6.2003. Then on 2.6.2003 the
Respondent no.1 informed that due to
certain unavoidable circumstances the cut
off date fixed as 1.6.2003 had been
cancelled and a new cut off date would be
informed. All along, the petitioner was
permitted to continue to work. Before the
new cut off date could be announced, on
1.7.2003 the petitioner wrote to the
Respondent-Mill
that
his
offer
for
resignation under the Modified Voluntary
Retirement Scheme may be treated as
cancelled. It is not disputed that till such
date the condition laid down by the
petitioner in his offer dated 12.7.2002 and
3.3.2003 of regularizing his provident
fund account had not been fulfilled by the
respondents. However, no orders had also
been
passed
on
any
of
the
communications of the petitioner i.e.
12.7.2002; 3.3.2003 and 1.7.2003. Then
on 14.7.2003, the Respondent-Mill passed
a fresh order, stating that the cut off date
for acceptance of the offer of the
petitioner and six other employees for
resignation under the Modified Voluntary
Retirement Scheme would be 16.7.2003.

3. Aggrieved by the said order the
petitioner has filed this writ petition with
the prayer that after quashing the order
dated 14.7.2003, a direction be issued to
the Respondents to allow the petitioner to
join his duties on the post of Supervisor
Weaving Maintenance and pay him all
emoluments for which he is entitled; and
also to pay him back wages since
16.7.2003,
and
further
permit
the
petitioner to work on such post till the age
of his superannuation and thereafter pay
him his retiral benefits.

4. I have heard Sri P.K. Tripathi,
learned counsel for the petitioner and Sri
J.N. Tiwari, learned Senior counsel
assisted by Sri Gopal Misra, learned
counsel appearing on behalf of the
respondents and have perused the record.
Counter and rejoinder affidavits have
been exchanged between the parties and
with their consent this writ petition is
being disposed of at the admission stage
itself.

5. The facts as narrated above are
not
disputed
by
the
parties.
The
contention of Sri Tripathi, learned counsel
for the petitioner, is that since the offer
made by the petitioner was always a
conditional offer which had not been
458 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
fulfilled by the respondents, and the said
offer
had
been
withdrawn
by the
petitioner prior to the final cut off date
and also prior to the fulfillment of the
conditions made in that offer, hence the
inclusion of the name of the petitioner,
without passing any order on the
conditional offer made by the petitioner
for accepting his offer/resignation under
the
Modified
Voluntary
Retirement
Scheme of the Mill, is totally unjustified
and liable to be quashed. In support of his
contention that the acceptance of the
offer/resignation of the petitioner in such
circumstances was wrong and illegal,
learned counsel for the petitioner has
relied upon the decision of the Apex
Court in the case of Shambhu Murari
Sinha v. Project and Development
India Ltd. and another 2002 AIR SCW
1165; Bank of India and others vs. O.P.
Swaranakar 2003 AIR SCW 313; and
J.N. Srivastava Vs. Union of India AIR
1999 S.C.1571

6. Sri J.N. Tiwari, learned Senior
counsel appearing for the respondents,
has, however, submitted that once the
offer of voluntary retirement made by the
respondent-Mill had been accepted by the
petitioner,
the
same
could
not
be
withdrawn specially when the initial cut
off date of 1.6.2003 had already been
announced, which was prior to the final
letter of withdrawal of his resignation
submitted by the petitioner on 1.7.2003.
In support of his said submissions, the
respondents have relied upon the decision
of the Apex Court rendered in the
following cases: A.K. Bindal vs. Union
of India 2003 F.L.R. 1; Vice Chairman
and Managing director, APSIDC Ltd.
and another vs. R. Varaprasad and
others 2003 (98) FLR 104 = 2003 AIR
SCW 2989; and State Bank of Patiala
vs. Romesh Chander Kanoji and others
2004 SCC (L&S) 428. Sri Tiwari has
further
submitted
that
since
by
notification of the Central Government
dated
9.3.2004
issued
during
the
pendency of this writ petition, the
respondent New Victoria Mills, Kanpur
has been closed down, the petitioner
cannot now be reinstated in service.
7. Having heard learned counsel for
the parties and considering the facts and
circumstances of this case, in my view
this writ petition deserves to be allowed
and the impugned order dated 14.7.2003
passed by the respondent M/s New
Victoria Mills, Kanpur is liable to be
quashed only in so far as it relates to the
case of the petitioner, and that the
petitioner would be entitled to all
consequential benefits.

8. From the record it is not clear that
at any point of time the petitioner had
ever given an unconditional offer of
resignation under the Modified Voluntary
Retirement Scheme of the respondentmill. His offer/resignation was only on the
condition that his entire dues, which
included the provident fund dues, should
first be cleared and paid to him. From the
record it is also clear that till the date of
acceptance of his resignation (i.e. either
28/31.5.2003 or 14.7.2003) the said dues
of the petitioner had not been settled by
the respondents. Admittedly the petitioner
was allowed to continue to work till
14.7.2003, when his offer of resignation is
said to have been accepted by the
respondent-mill. It is also established
from the record that prior to the said date,
on 1.7.2003, the petitioner had already
withdrawn his offer of resignation.

9. The Apex Court in the case of
Bank of India (supra) has held that such
1 All] Shri Kant Arya V. M/s New Victoria Mills and others
459
voluntary retirement schemes are only an
invitation to offer, and the application
filed by the employee under the said
scheme could then be termed as an offer
which the employee can withdraw before
its acceptance. The decisions of the
Supreme Court as relied upon by the
learned counsel for the respondents are
distinguishable on facts.
10. In A.K. Bindal (supra) the
Supreme Court was dealing with a case
where, the employee had accepted the
voluntary retirement scheme of the
employer and taken the money to which
he was then found entitled to under the
scheme out of his own sweet-will and
without any compulsion. In such facts, it
was held that such person then ceases to
be under employment of the company and
cannot agitate for any kind of his past
right with his erstwhile employer. In the
case of R. Varaprashad (supra) also it
was held by the Supreme Court that once
the employee had opted for voluntary
retirement of his own choice, which had
been accepted, then he could not claim
anything contrary to the terms of the
scheme that had been accepted by him.

11. Similarly the case of Romesh
Chander Kanoji is also distinguishable on
facts as it was a different scheme which
the Supreme Court was dealing with, to
the effect that under the said scheme an
opportunity of 15 days was given to the
employee/applicant to withdraw from the
scheme.
In
the
present
case
the
respondents have not been able to show
any such condition in the voluntary
retirement
scheme
which
is
being
considered by this Court. As such, all the
aforesaid decisions which have been
relied upon by the learned counsel for the
respondents do not help them.

12.

The
modified
voluntary
retirement scheme of the respondent-mill,
can only be said to be an invitation to an
offer. In response to the same, the offer
was made by the petitioner on 12.7.2002,
which was only a conditional offer and
was subject to fulfillment of certain
condition. As such, no agreement or
contract could be said to have been
concluded unless offer was accepted. It is
not disputed that neither the condition had
been fulfilled by the respondents as had
been imposed by the petitioner in his
offer, nor his offer had been accepted by
the respondent-mill prior to the date of the
withdrawal of his offer of resignation,
which was 1.7.2003.

13. In Shambhu Murari Sinha
(supra) the Supreme Court was dealing
with a case where the letter of acceptance
was a conditional one, inasmuch as
though option of the appellant for the
voluntary retirement under the scheme
was accepted, but it was stated that the
"release
memo
alongwith
detailed
particulars would follow", and before the
appellant was actually released from the
service, he withdrew his option for
voluntary retirement by sending two
letters to which there was no response
from the respondents. It was after the
withdrawal of the option for voluntary
retirement that the respondents directed
for release of the employee from the
service, and that too from the next date.
The employee was paid his salaries etc.
till his date of actual release and it was
therefore held that "the jural relationship
of employee and employer between the
appellant and the respondents did not
come to an end on the date of acceptance
of the voluntary retirement and said
relationship
continued
till
26th
of
September,
1997.
The
appellant
460 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
admittedly sent two letters withdrawing
his voluntary retirement before his actual
date of release from service. Therefore, in
view of the settled position of the law and
the terms of the letter of acceptance, the
appellant had locus poenitentiae to
withdraw his proposal for voluntary
retirement before the relationship of
employer and employee came to an end."
14. In the case of J.N. Srivastava
(supra) the employee had offered for
voluntary retirement on 3.10.1989 but
with effect from 31.1.1990. His offer was
accepted by the authorities on 2.11.1989
itself, but thereafter, before 31.1.1990 was
reached, the appellant, on 11.12.1989,
wrote letter to withdraw his voluntary
retirement proposal, which was rejected
by the authority vide communication
dated 26.12.1989. The employee had also
given up his charge of the post as per his
memo relinquishing the charge. In such
facts it was held by the Supreme Court
that "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 poenitentiae to
withdraw the proposal for voluntary
retirement."

15. In my view, the case in hand is
on a better footing, as the offer made by
the
petitioner
under
the
modified
voluntary retirement scheme of the
respondent was only conditional and such
condition has admittedly not yet been
fulfilled by the respondent mill. The
petitioner, first on 3.3.2003, had written to
the respondent mill that since his
provident fund account had not been
regularized, which was a condition made
in his offer of resignation under the
scheme, it was specifically stated by the
petitioner that the conditional offer
tendered by him under the scheme may
remain in abeyance. Admittedly, the
petitioner continued to work and the jural
relationship of employee and employer
between the petitioner and the respondent
mill
continued.
Even
though
the
respondent mill may have intimated by
communication dated 28/31.5.2003 that
the cut off date for acceptance of the
resignation/offer of the petitioner would
be 1.6.2003, but the same is to be ignored
in the case of the petitioner for two
reasons; firstly, the petitioner had already
(on 3.3.2003) made a request for keeping
his offer of resignation in abeyance; and
secondly, the cut off date as fixed for
1.6.2003 had been cancelled by the
respondent mill itself, and the new cut off
date was to be informed subsequently
which was then on 14.7.2003 intimated to
be as 16.7.2003 and prior to that, on
1.7.2003, the petitioner had already
communicated to the respondent mill that
his offer for resignation under the scheme
may be treated as cancelled.

16. In such circumstances, the
relationship of employer and employee
continued between the petitioner and the
respondent mill. During this period the
petitioner had already withdrawn his offer
for resignation under the scheme, and the
condition spelled out in the initial offer of
the petitioner had never at any stage been
fulfilled by the respondent. In the absence
of the same having been fulfilled, or the
offer of the petitioner having been
accepted by the respondent mill, no
contract or agreement could be said to
have been finalized between the petitioner
and the respondent mill so as to
voluntarily retire the petitioner on the
basis of his offer made on 12.7.2002.
1 All] Shri Kant Arya V. M/s New Victoria Mills and others
461
17. Accordingly, for the foregoing
reasons,
the
impugned
order
dated
14.7.2003 cannot be said to be justified in
the case of the petitioner and this writ
petition is liable to be allowed. The
impugned order dated 14.7.2003, setting
out the cut off date of resignation of the
petitioner under the modified voluntary
retirement
scheme,
is
quashed,
but
however only in so far as it relates to the
petitioner. It is provided that the petitioner
shall be treated as on duty with effect
from 16.7.2003, and shall be entitled to all
consequential benefits including payment
of back wages etc. If the respondent mill
has been closed down in pursuance of the
notification of the Central Government
dated 9.3.2004 (as has been submitted by
the learned counsel for the respondentmill), it is directed that, after the closure
of the said mill, the petitioner shall be
entitled to all such benefits as other
employees were to get who were working
with the respondent mill as on the date of
its closure.

18. In the end learned counsel for
the petitioner made an oral prayer that the
case of the petitioner for absorption in any
other mill of the respondent-National
Textile Corporation may be considered.
The submission is that the petitioner was
initially appointed in Atherton Mills of
the National Textile Corporation which is
still in operation and it was only by virtue
of the petitioner being transferred to the
New Victoria Mills, which has been
closed down, that the petitioner would
have to face the consequences of
retrenchment.
In
the
aforesaid
circumstances, it is directed that in case if
there is any such scheme for absorption of
the employees of New Victoria Mills,
Kanpur and also in case if other
employees of the said New Victoria Mills,
Kanpur have been so absorbed after
closure of the said mill, the case of the
petitioner for absorption in some other
mill of the respondent-National Textile
Corporation may also be considered by
the Corporation, as expeditiously as
possible.

19.

With
the
aforesaid
observations/directions, this writ petition
stands allowed. No order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 13076 of 2003

Shiv Shanker Srivastava
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Krishna Mohan

Counsel for the Respondents:
S.C.

Constitution
of
India,
Art.
226Compensation-retired
Senior
Auditorapplied for medical reimbursement of
Rs.44,277/- dated 7.11.96 the Director
Medical Care send the Original Bills to
Joint Director Local Funds Accounts
Allahabad-4.3.97 to June, 2003 nothing
done-despite of Court's order payment
not made on 27.4.04 petitioner died due
to
want
of
fund-heirs
claimed
compensation of Rs. 6 Lakhs-courts
expressed its great concern with the
State
of
affairs
prevalent
in
the
government offices-Court can not sit
silent and be mute spectator for the
harassment of the citizens-for the loss