JUDGMENT Ashok Bhushan, J.
1. Heard Sri Kushal Kant, learned counsel for petitioner and Dr. Y.K. Srivastava, learned counsel, appearing for the respondents. Counter and rejoinder affidavits have been exchanged between the parties. With the consent of the parties the writ petition is being finally decided.
2. By this writ petition the petitioner has prayed for quashing the order dated 13th July, 2001 passed by Managing Director, U.P. State Sugar Corporation Limited rejecting the representation of the petitioner dated 30th April, 2001. It is further prayed that a direction be issued commanding respondents No. 1 and 2 to treat the V.R.S. Form submitted by the petitioner on 15th September, 2000 as withdrawn. A writ of mandamus is also prayed commanding respondents No. 1 and 2 to pay the petitioner her salary due since 1.6.2000 and continue to pay her regular salary month to month.
3. Brief facts necessary for deciding the controversy raised in the writ petition are; petitioner was appointed as Class-IV employee in the year 1989 in Sugar Mill, Nekpur, Bareilly Unit of U.P. State Sugar Corporation Limited. The U.P. State Sugar Corporation Limited in pursuance of the Government order dated 9th May, 2000 introduced voluntary retirement scheme. The voluntary retirement scheme was circulated by the Mill vide its letter dated 15th June, 2000. The U.P. State Sugar Corporation Limited decided to close down 11 of its Units (Mills) which included the Nekpur, Bareilly Unit also from the year 1998-99. The petitioner submitted an application dated 15th September, 2000 praying for grant of voluntary retirement. On 15th September, 2000 itself the respondents claimed to have calculated the benefits to which petitioner was entitled, i.e., an amount of Rs. 49,589.40P. Vide letter dated 5'" December, 2000 the General Manager communicated to all the employees who have applied for V.R.S. that the amount of V.R.S. has been received from Head Office and the employees are requested to collect the amount within one week, After receiving the letter dated 5th December, 2000, the petitioner made an application on 13th January, 2001 stating that although petitioner had filled V.R.S. form on 15th September, 2000 but till date she has not been made the payment under the said scheme. The petitioner further stated that when she contacted the Account Office she was told that money has not yet come. The petitioner stated that her salary is due from June, 2000 along with other amount. The petitioner filed a writ petition being Writ Petition No. 6580 of 2001 in February, 2001 stating that petitioner has given an application for voluntary retirement under voluntary retirement scheme on 15.9.2000 but before it could be accepted she filed an application on 25th September, 2000 withdrawing her option for voluntary retirement. It was stated in the writ petition that neither any order has been passed nor petitioner has been paid salary. This Court disposed of the writ petition on 22nd February, 2001 directing the Managing Director of the Corporation to pass a reasoned order on the application of the petitioner within one month. After the order dated 22nd February; 2001 of this Court the Managing Director passed the impugned order dated 13th July, 2001 holding that petitioner never submitted the application dated 25.9.2000 for withdrawing her option given under voluntary retirement scheme nor any such application dated 25th September, 2000 has been received in the Unit. The order further states that option of the petitioner dated 15.9.2000 for voluntary retirement was accepted on the same day and further vide letter dated 5th December, 2000 the petitioner was informed to receive the payment under the voluntary retirement scheme. This writ petition has been filed by the petitioner challenging the said order dated 13th July, 2001.
4. Learned counsel for the petitioner, challenging the impugned order, submitted that petitioner having withdrawn her option given under the voluntary retirement scheme by letter dated 25.9.2000 before the same could have been accepted by the respondents, the petitioner cannot be treated to have voluntarily retired and is entitled for all benefits including regular salary month to month. The respondents have, never communicated acceptance of option of the petitioner at any point of time. The filing of writ petition by the petitioner in this Court being Writ Petition No. 6580 of 2001 itself amounts that petitioner had withdrawn her option and the respondents committed error in rejecting the representation of the petitioner. Learned counsel for the petitioner further submitted that voluntary retirement scheme circulated by the respondents is not an offer but only an invitation to treat. The offer was given by the petitioner on 15th September, 2000 which can very well be withdrawn before its acceptance. Reliance has been placed by counsel for the petitioner on the judgments of the Apex Court ; Bank of India and Ors. v. O.P. Swarnakar and Ors. 1987 (Supp) SC.C. 228; Balram Gupta v. Union of India and Anr. ; Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, ; J.N. Srivastava v. Union of India and Anr. ; Shambhu Murari Sinha v. Project and Development India and Anr.
5. Learned counsel for the respondents, refuting the submissions of counsel for the petitioner, contended that petitioner's option under the voluntary retirement scheme submitted on 15.9.2000 was accepted on the same day. Petitioner's application dated 25.9.2000 was never given, rather petitioner herself gave an application on 13.1.2001 with regard to her payment under the voluntary retirement scheme as per her application dated 15.9.2000. In the application dated 13.1.2000 the petitioner has complained about the non payment, no reference was made in the application dated 13.1.2000 of her alleged withdrawal dated 25.9.2000. Although the acceptance of option was made on the same day, i.e., 15.9.2000 but in any view of the matter by letter dated 5.12.2000 the petitioner was communicated that entire amount under the voluntary retirement scheme has been received for payment and petitioner may collect the same within a week. The letter dated 5.12.2000 was duly served on the petitioner. Thus the petitioner never withdrew her option. The voluntary retirement scheme circulated by the respondents was an offer which having been accepted by the petitioner on 15.9.2000, the petitioner has no right to withdraw the same. Further the petitioner herself vide her declaration dated 15.9.2000 (Annexure CA-3 to the counter affidavit) undertook not to withdraw the offer in any circumstance, it is not open to her to withdraw her offer.
6. I have considered the submissions raised by both the parties and have perused the record.
7. The first question for consideration before considering the respective submissions of the parties is as to whether the voluntary retirement scheme circulated by the Corporation is an offer or only an invitation to treat.
8. The counsel for the petitioner submitted that the voluntary retirement scheme is only an invitation to treat and offer was by the petitioner on 15.9.2000 which could have been very well withdrawn before its acceptance. The counsel for the respondents to the contrary has submitted that voluntary retirement scheme is an offer by the respondents which having been accepted by the petitioner, the same could not have been withdrawn. The above issue is no more res integra in view of the pronouncement of the Apex Court in Bank of India's case (supra). Similar argument was considered by the Apex Court in the above case in which the voluntary retirement scheme was circulated by different Nationalised Bank and State Bank of India. The Apex Court held that the scheme merely constitute an invitation to treat and not an offer. Paragraph 64 of the said judgment is extracted below:-
64. Once it is held that the provisions of the Indian Contract Act, 1872 would be applicable, the Scheme admittedly being contractual in nature, the provisions of the Act shall apply. The Scheme having regard to its provisions as noticed hereinbefore would merely constitute invitation to treat and not an offer.
9. The voluntary retirement scheme circulated by the petitioners being an invitation to treat, the application by the employee praying for giving voluntary retirement is an offer. Section 5 of the Indian Contract Act, 1872 provides that a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer. Thus Section 5 of the Indian Contract Act, 1872 gives right to person making proposal to revoke and the person is entitled to revoke the same before the communication of its acceptance is complete. Section 5 of the Indian Contract Act, 1872 is extracted below:-
5. Revocation of proposals and acceptances.- A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards.
An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards.
10. The judgment of the Apex Court relied by counsel for the petitioner in Bank of India's case (supra) following the earlier judgment of the Apex Court has held that an employee making an application under voluntary retirement scheme is fully entitled to withdraw his or her offer before the same is accepted. Even if the condition of scheme or any stipulation by him prohibits withdrawal of such offer, the person making proposal has right to withdraw. The submission of counsel for the respondents that petitioner could not have withdrawn her offer since she gave an declaration that she will not withdraw her offer cannot be accepted. The petitioner had right to withdraw her offer of voluntary retirement under the voluntary retirement scheme before the same was accepted.
11. Now the question which arises for consideration is as to whether petitioner actually withdraw her offer and when the offer made by the petitioner shall be treated to have been accepted by the respondents.
12. The petitioner's case in the writ petition is that after submitting her application on 15.9.2000, the petitioner vide letter dated 25.9.2000 has withdrawn her offer to retire. Petitioner's case in the writ petition is that the respondents told the employees that unless they submit an application under the voluntary retirement scheme, they will be thrown out of their job which compelled her to make application dated 15.9.2000. The petitioner case, however, is that vide letter dated 25.9.2000 she has withdrawn the offer. In the counter affidavit, the respondents has categorically denied receiving of application dated 25.9.2000 of the petitioner. The respondents in the counter affidavit have brought on the record an application dated 13.1.2001 of the petitioner by which she made complain for non payment of her amount under voluntary retirement scheme. Copy of the said letter dated 13.1.2001 has been filed by the respondents as Annexure CA-1 to the counter affidavit. Photo copy of the same application has been filed by the respondents as Annexure SCA-7 to the supplementary counter affidavit. The averments made by the respondents in paragraph 8 of the counter affidavit about the application dated 13.1.2001 have not been specifically denied by the petitioner in the rejoinder affidavit except a bare denial. It has not been stated in the rejoinder affidavit that petitioner had not made the application dated 13.1.2001. It is relevant to note here that the letter dated 13.1.2001 was written by the petitioner after receiving the letter dated 5.12.2001 of the Corporation by which large number of employees were asked to collect their dues within one week from the office. The letter dated 13.1.2001 of the petitioner makes a specific reference of the letter dated 5.12.2000 of the General Manager. Petitioner in her letter has made reference to the letter dated 5.12.2000 to the General Manager and further stated that although petitioner had made an application under the voluntary retirement scheme on 15.9.2000 but petitioner has not yet received the amount. The petitioner further stated that she contacted the Account Office but she was told that amount has not yet been received. Further she complained that her no dues certificate has also not been accepted. A bare perusal of the letter dated 13.1.2001 shows that in the said letter she does not even refer to her alleged letter dated 25.9.2000 by which she claims to withdraw her offer. The letter dated 13.1.2001 to the contrary makes complaint of non payment and insist for payment of all dues. The letter dated 13.1.2001 clearly indicates that petitioner was pressing on that date payment under voluntary retirement scheme as per her letter dated 15.9.2000. In view of the letter dated 13.1.2001 of the petitioner herself, tho submission regarding letter dated 25.9.2000 withdrawing the offer cannot bo accepted. Had the petitioner submitted application dated 25.9.2000 withdrawing her offer, there was no question of non mentioning the same in her letter dated 13.1.2001 when she was complaining of non payment.
13. Learned counsel for the petitioner submitted that the fact that petitioner filed writ petition in February, 2001 and claimed that she has withdrawn the offer also indicates that she has withdrawn the offer and never wanted letter dated 15.9.2000 to be given effect to.
14. The next question to be considered is as to when the acceptance by the respondents of the offer dated 15.9.2000 has to be treated. In the counter affidavit although the respondents have stated that the offer dated 15.9.2000 was accepted on the same day but there is no material on the record to prove that the application dated 15.9.2000 was accepted on 15.9.2000 itself, i.e., on the same day. Moreover, there is no communication of any such acceptance dated 15.9.2000 to the petitioner.
15. Section 7 of the Indian Contract Act, 1872 provides that the acceptance must be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. Section 7 of the Indian Contract Act, 1872 is extracted below:-
7. Acceptance must be absolute.-In order to convert a proposal into a promise, the acceptance must-
(1) be absolute and unqualified;
(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner and not otherwise; but, if he fails to do so, he accepts the acceptance.
16. There is nothing on the record to come to conclusion that acceptance was required to be communicated in any particular manner or form. The letter dated 5.12.2000 which has been filed as Annexure-8 to the supplementary counter affidavit is a letter informing 68 employees whose list was annexed with the letter that their amount under the voluntary retirement scheme has been received from the Head Quarter and the employees should appear within one week in. the office to receive their payment after submitting no dues certificate. The letter dated 5.12.2000, thus, indicate that the amount payable to the employees under the voluntary retirement scheme has been received. The receiving of the amount clearly indicates that the said amount has been calculated and finalised. When the amount is being offered to be paid the acceptance of proposal of the petitioner seeking voluntary retirement has to be treated to be accepted. The letter dated 5.12.2000 can be accepted as reasonable mode of communication of acceptance. Thus for the purpose of the present case the letter dated 5.12.2000 has to be accepted as communication of acceptance. Hence, the acceptance has also been communicated to the petitioner. Letter dated 13.1.2001 written by the petitioner, which has been filed as Annexure CA-1 to the counter affidavit clearly indicates that petitioner even up to that date was insisting for her payment under the voluntary retirement scheme and was complaining for non payment, hence that letter proves that offer was not withdrawn by the petitioner till then. The filing of writ petition after 31st January, 2001 stating that petitioner has withdrawn the offer does not give any help to the petitioner.
17. The petitioner's counsel has also lastly submitted that petitioner has right to withdraw the offer till she was relieved from the post and entire dues are paid to her. It is submitted that admittedly no dues has yet been paid to the petitioner, the petitioner continues in employment and has right to withdraw the same, it is submitted that filing of the writ petition itself indicates the clear intendment of the petitioner to withdraw the offer of voluntary retirement. The counsel for the petitioner has referred to and relied on various judgments of the Apex Court as noted above.
18. Before proceeding any further to consider the contention, it is necessary to look into the various judgments of the Apex Court relied by counsel for the petitioner.
19. Balram Gupta's case (supra) relied by the petitioner was a case in which the employee vide letter dated 24th December, 1980 sought voluntary retirement seeking to retire with effect from 31st March, 1981. The letter of voluntary retirement was accepted on 20th January, 1981. By letter dated 31st January, 1981 the petitioner withdrew his notice of voluntary retirement. Rule 48-A(4) of the Central Civil Services (Pension) Rules, 1972 provides that a government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority. The Apex Court in the above case held that since the voluntary retirement was to take effect at a subsequent date prospectively, the petitioner has locus to withdraw the said letter of voluntary retirement. The Apex Court held that there was no valid reason for withholding the permission by the respondents and there was valid reason for the employee to withdraw the voluntary retirement letter. The above case does not help the petitioner in the present controversy. In Balram Gupta's case (supra) the voluntary retirement was to become effective on 31th March, 1981 and the withdrawal was made on 31th January, 1981, i.e., much before the said letter was given effect to. Further there was specific rule requiring permission of employer to withdraw and the Apex Court took the view that there was no valid reason for withholding the permission. The present is a case in which the benefits were calculated on 15.9.2000 itself and communication was made on 5.12.2000 asking the petitioner to collect the dues.
20. The case of Power Finance Corporation Ltd. (supra) was a case in which the Apex Court found that the retirement of the employee was conditional which did not become effective till the employee was relieved of his duty after complying with the condition, hence the employer had right to withdraw the scheme. The case of Power Finance Corporation Ltd. (supra) was a case in which voluntary retirement scheme itself was withdrawn by the employer during subsistence of master and servant relationship. The voluntary retirement was accepted on 20.12.1994 conditionally to the effect that until the dues are paid the order does not become effective. The Apex Court in the said case held that since the dues were not paid, hence the employer were within their power to withdraw the scheme.
21. J.N. Srivastava's case (supra) was also a case in which voluntary retirement notice was given on 3.10.1989 which was to come into effect from 31.1.1990. The Government accepted the offer on 2.11.1989 whereas the employee withdrew the notice vide letter dated 11.12.1989. The Apex Court held that withdrawal was permissible because it was made before 31.1.1990, which was a date to which voluntary retirement was to take effect to. The said case also does not help the petitioner in the present case.
22. The case of Shambhu Murari Sinha (supra) was also a case in which option of the employee under the voluntary retirement scheme was accepted with condition that release memo along with detail particulars shall follow. The Apex Court held that since the acceptance was conditional and the employee had not been released, hence he has right to withdraw. The employee had continued till 26.9.1997 up to which date he was paid all his salary, hence the Apex Court held that he was continuing in service till 26.9.1997, hence withdrawal on 7th August, 1997 was permissible. Paragraph 5 of the said judgment is extracted below:-
5.From the facts stated above, it would be seen that though the option of voluntary retirement exercised by the appellant by his letter dated 18.10.1995 was accepted by the respondent Management Jby their letter dated 30.7.1997, the appellant was not relieved from service and he was allowed to continue in service till 26.9.1997, which, for all practical purposes, would be the "effective date" as it Vitas on this date that he was relieved from service. In the meantime, as pointed out above, the appellant had already withdrawn the offer of voluntary retirement vide his letter dated 7.8.1997. The question which, therefore, arises in this appeal is whether it is open to a person having exercised option of voluntary retirement to withdraw the said offer after its acceptance but before it is made effective. The question is squarely answered by three decisions, namely, Balram Gupta v. Union of India, J.N. Srivastava v. Union of India and Power Finance Copn. Ltd. v. Pramod Kumar Bhatta in which it was held that the resignation, in spite of its acceptance, can be withdrawn before the "effective date". That being so, the appeal is allowed. The impugned judgment of the High Court is set aside with the direction that the appellant shall be allowed to continue in service with all consequential benefits. There will, however, be no order as to costs.
23. The last case relied by counsel for the petitioner is Bank of India's case (supra). In the said judgment the Apex Court held that voluntary retirement scheme was not a proposal or offer but merely an invitation to treat the application filed by the employee to constitute an offer. The Apex Court in the said case held that the scheme circulated by different Nationalised Bank was not invalid and the Bank employee has right to withdraw his offer. The argument on behalf of the Bank that employee having once given an offer to voluntary retire cannot withdraw from the same was rejected. The Apex Court also held that those employees who accepted the ex gratia payment or any other benefit could not have withdraw the same. The judgment of the High Court allowing the writ petition of those employees who have accepted some benefits was not approved. In the judgment of the Apex Court no such preposition has been laid down that till the employees have received the payment under the voluntary retirement scheme, they have right to withdraw the same. The Apex Court has held that Section 5 of the Indian Contract Act, 1872 is applicable with regard to scheme. Thus according to the ratio laid down by the Apex Court in the above judgment, withdrawal of an offer is permissible till person making an offer receives the communication of acceptance as laid down in Section 5 of the Indian Contract Act, 1872. The submission of counsel for the petitioner that till petitioner receives the amount, she can always withdraw her offer, cannot be accepted in view of the express provision of Section 5 of the Indian Contract Act, 1872 which permits withdrawal only before acceptance is communicated.
24. One more fact which is relevant to be noted in the present case, is that 11 sugar mills of U.P. State Sugar Corporation including the Bareilly Unit have been declared sick by B.I.F.R. vide order dated 21st August, 1995 and the mill has already been closed since before November, 1999. The mill having been closed, the voluntary retirement scheme was enforced with the approval of the State Government dated 12.11.1999. In the supplementary counter affidavit it has been stated that 583 employees opted for voluntary retirement and only 22 employees did not opt for the same. The percentage of employees who opted for voluntary retirement was 96%. Those employees who did not opt for voluntary retirement were retrenched. The retrenchment orders were challenged in this Court by various writ petitions which have been dismissed by this Court. Copy of the said judgment has been brought on the record as Annexure SCA-5 to the supplementary counter affidavit.
25. In view of the aforesaid discussions, it is held that after submitting option under voluntary retirement scheme on 15.9.2000. the petitioner did not withdraw the same as alleged vide letter dated 25.9.2000, rather she insisted for payment under voluntary retirement scheme vide her application dated 13.1.2001. The letter dated 5.12.2000 is to be regarded as communication of acceptance of the offer of the petitioner. The offer for voluntary retirement having been accepted, the petitioner is entitled for payment under the voluntary retirement scheme. Petitioner's offer under voluntary retirement scheme having been accepted, the petitioner is not entitled for any relief as claimed in the writ petition. It has been stated by counsel for the respondents that petitioner did not receive the amount offered to her under the scheme which amount has been returned to Head Office. The petitioner being entitled for the amount under the voluntary retirement scheme, it is incumbent on the respondents to make the payment to the petitioner of the amount to which she is entitled. The respondents are, thus, directed to ensure payment of entire amount due to the petitioner under the voluntary retirement scheme within a period of two months from the date. In the event the petitioner is not offered the amount due to her by a Bank draft or cheque, she will be entitled to receive the payment with 6% interest after expiry of two months.
26. The writ petition is disposed of accordingly.
27. Parties shall bear their own costs.