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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 31250 OF 2011

C.V. Francis ...Petitioner                Vs. Union of India & Ors. ...Respondents

J U D G M E N T

ALTAMAS KABIR, CJI.

1. The Petitioner, who has appeared in person, was  

employed  as  a  Manager  by  the  Respondent,  Bokaro  

Steel Limited, which subsequently became a unit of  

Steel Authority of India (SAIL) from 20.2.1998.  On  

the  same  date  a  Voluntary  Retirement  Scheme  was  

introduced  and  the  Petitioner  also  applied  on  

7.4.1998 to avail the benefits of the Scheme. The

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Petitioner claims to have applied for leave from  

30.4.1998 to 31.5.1998 which was purported to have  

been sanctioned.

2. However, without waiting for acceptance of his  

application  seeking  voluntary  retirement,  the  

Petitioner  proceeded  to  the  United  States  and  

applied  for  further  leave  from  1.6.1998  to  

30.6.1998.   Such  prayer  was  rejected  and  the  

Petitioner was asked by letter dated 26.6.1998 to  

join his duties from 1.7.1998.  The Petitioner did  

not join his duties, as directed, but again applied  

for leave from 1.7.1998 to 31.8.1998. By its letter  

dated 3.8.1998, the Respondent Company informed the  

Petitioner that leave had not been granted and that  

he was being treated as absent from duty without  

leave,  for  which  disciplinary  proceedings  were  

being  contemplated  against  him  for  unauthorised  

absence. In the absence of any response from him,  

the  Respondent  Company  once  again  wrote  to  the

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Petitioner on 14.8.1998, asking him to report for  

duty within ten days, failing which disciplinary  

action  would  be  initiated  against  him,  but  the  

Petitioner  failed  to  respond  even  to  the  said  

letter.  On 11.10.1998, a disciplinary enquiry was  

initiated  against  the  Petitioner  for  his  

unauthorised absence from duty.

3. Without replying to the charges against him,  

the  Petitioner  sent  yet  another  representation  

dated  20.11.1998  to  the  Respondent  Company  to  

accept  his  request  for  voluntary  retirement.  As  

such prayer was rejected, the Petitioner moved the  

Kerala High Court in its writ jurisdiction for a  

direction upon the authorities to accept his prayer  

for  voluntary  retirement  and  to  drop  the  

disciplinary  action  initiated  against  him.   The  

Kerala High Court disposed of the Writ Petition on  

the  same  day  and  by  its  Order  dated  23.4.1999  

directed  the  Union  of  India  to  dispose  of  the

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Petitioner's  representation  within  a  reasonable  

time.  It was made clear that whatever action was  

taken would be subject to the order to be passed on  

the  Petitioner's  representation.   The  Petitioner  

was given ample opportunity to represent his case  

by the Respondent Union of India, which vide Order  

dated  11.10.1999,  rejected  the  Petitioner's  

representation.  Since,  thereafter,  on  29.12.1999,  

the Petitioner was found guilty in the departmental  

proceedings, his services were terminated.

4. The said Order was challenged by the Petitioner  

in the  Kerala High Court by way of Writ Petition  

No. 26659 of 2009, which was, however, rejected on  

the  ground  that  the  Kerala  High  Court  had  no  

territorial  jurisdiction  to  entertain  the  same.  

Thereafter, the Petitioner approached the Jharkhand  

High Court by way of Writ Petition (S) No. 4057 of  

2004.

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5. The Writ Petition having been dismissed by the  

learned Single Judge, the Petitioner preferred an  

appeal  before  the  Division  Bench  in  which  

Petitioner's  counsel  strongly  urged  that  his  

application for voluntary retirement be accepted.  

He also added a new dimension to his submissions  

that since there was no response from the side of  

the  Respondent,  his  application  for  voluntary  

retirement must be deemed to have been accepted.  Accordingly,  the  subsequent  proceedings  taken  by  

way of disciplinary proceedings and the order of  

termination  of  services  passed  therein,  must  be  

held to be entirely invalid.

6. In support of his submissions, the Petitioner  

relied heavily on the decision of this Court in Tek  

Chand Vs. Dile Ram [(2001) 3 SCC 290].  Although,  

the said decision was rendered in the context of an  

election,  incidentally  the  question  of  voluntary  

retirement  also  came  up  for  consideration.   The

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learned  Judges  held  that  there  were  three  

categories  of  rules  relating  to  seeking  of  

voluntary retirement after notice.  In the first  

category, voluntary retirement automatically comes  

into force on expiry of notice period.  In the  

second category also, retirement comes into force  

unless  an  order  is  passed  during  notice  period  

withholding permission to retire and in the third  

category voluntary retirement does not come into  

force unless permission to this effect is granted  

by the competent authority. In such a case, refusal  

of permission can be communicated even after the  

expiry of the notice period.

7. The Petitioner then referred to Rule 48-A of  

the Central Civil Services Pension Rules, dealing  

with  retirement  on  completion  of  20  years'  

qualifying  service.   The  Petitioner  pointed  that  

under Sub-rule (1) at any time after the Government  

servant  has  completed  twenty  years'  qualifying

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service, he may, by giving notice of not less than  

three  months  in  writing  to  the  Appointing  

Authority, retire from service.  He also pointed  

that under Sub-rule (2), the notice of voluntary  

retirement given under sub-rule (1) would have to  

be accepted by the Appointing Authority.  However,  

under the proviso thereto, it is further provided  

that where the Appointing Authority does not refuse  

to grant the permission for retirement before the  

expiry of the period specified in the said notice,  

the retirement shall become effective from the date  

of expiry of the said period.

8. Drawing an analogy with the facts of his own  

case,  the  Petitioner  contended  that  even  in  his  

case, upon expiry of the period of notice given by  

him to retire voluntarily in terms of the Voluntary  

Retirement  Scheme,  the  retirement  became  

ineffective on expiry of the said period of the  

notice.   Accordingly,  the  subsequent  letter

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addressed  to  him  by  the  Respondent  company  to  

rejoin his duty was of little consequence and any  

action taken thereupon would be void.  According to  

Petitioner, the termination of his services was in  

violation of the well-settled principles relating  

to acceptance of voluntary retirement laid down in  

Tek Chand's case (supra).  

9. Appearing for the Respondent Company, Mr. Dhruv  

Mehta, learned Senior Advocate,  strongly opposed  

the Petitioner's case on behalf of the Respondent  

Company primarily on the ground that in a scheme  

for voluntary retirement floated by a company, it  

is entirely the company's discretion to accept and  

allow  an  employee's  application  for  voluntary  

retirement.  The concept of deemed acceptance also  

was not available in the instant case, since the  

scheme did not contain such a provision.

10. Mr.  Mehta  highlighted  the  conduct  of  the  

Petitioner after applying for voluntary retirement.

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Mr. Mehta pointed out that without waiting for his  

prayer for voluntary retirement to be accepted, the  

Petitioner joined an American Company even before  

the expiry of the notice period.  In fact, it was  

quite evident from the tenor of his letters seeking  

leave, that the Petitioner never intended to rejoin  

his  duty  in  the  Respondent  company.   On  the  

question   of  deemed  acceptance  of  an  employee's  

application  for  voluntary  retirement,  Mr.  Mehta  

referred to the decision of this Court in Padubidri  

Damodar  Shenoy Vs.  Indian  Airlines  Limited  and  

Another [(2009) 10 SCC 514], wherein, although, the  

Petitioner  upon  completing  of  20  years'  of  

qualifying  service  had  applied  for  voluntary  

retirement, he was informed that such retirement  

would  not  be  automatic  on  expiry  of  period  of  

notice, but it would become effective only after  

the approval of the competent authority.  In the  

said  case,  this  Court  also  observed  that  the  

employee had never acted as if his services had

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been  discontinued  on  the  expiry  of  the  three  

months' notice period, inasmuch as, he continued to  

attend  his  duties.  Thus,  the  application  for  

voluntary  retirement  made  by  the  Petitioner  

therein, never really came into effect.

11. Mr.  Mehta  submitted  that  the  facts  of  the  

present case were somewhat similar to the facts of  

the above case, where, although an application had  

been made for voluntary retirement, the same was  

not  accepted  and  the  services  of  the  Petitioner  

therein  did  not  stand  terminated  even  after  the  

expiry of the period of notice.  Mr. Mehta urged  

that on the same reasoning, the decision in  Tek  

Chand's case (supra) would have no application to  

the facts of this case.  

12. Having  considered  the  submissions  made  on  

behalf  of  the  parties,  we  see  no  reason  to  

interfere with the judgment and Order of learned  

Single Judge, as upheld by the Division Bench of

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the High Court, rejecting the Petitioner's prayer  

challenging the termination of his services.  It  

may be noted that notice was issued on the Special  

Leave  Petition  on  11.11.2011  only  to  consider  

whether the order of dismissal passed against the  

Petitioner  could  be  converted  into  an  order  of  

compulsory  retirement.   We  have  considered  the  

matter  from  that  angle  and  do  not  find  any  

justification  to  modify  the  Order  of  either  the  

learned Single Judge or the Division Bench.  As has  

been emphasised by the Division Bench of the High  

Court,  it  is  obvious  that  the  Petitioner  having  

obtained  employment  in  the  United  States  of  

America, had no intention of rejoining his duties  

with the Respondent company.  Instead of waiting  

for the notice period, the Petitioner moved to the  

United States, having obtained employment there and  

his  letters  praying  for  leave  were  of  no  

consequence.  Furthermore, instead of attending the  

disciplinary  enquiry  commenced  against  him,  the

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Petitioner  repeatedly  requested  the  Respondent  

company  to  accept  his  application  for  voluntary  

retirement.

13. It  is  well-established  that  a  Voluntary  

Retirement Scheme introduced by a company, does not  

entitle an employee as a matter of right to the  

benefits of the Scheme.  Whether an employee should  

be allowed to retire in terms of the Scheme is a  

decision which can only be taken by the employer  

company, except in cases where the Scheme itself  

provides  for  retirement  to  take  effect  when  the  

notice  period  comes  to  an  end.  A  Voluntary  

Retirement  Scheme  introduced  by  a  company  is  

essentially a part of the company's desire to weed  

out the deadwood.

14. The  Petitioner's  contention  that  his  

application  for  voluntary  retirement  came  into  

effect on the expiry of the period of notice given  

by  him  must  fail,  since  there  was  no  such

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stipulation  in  the  scheme  that  even  without  

acceptance of his application it would be deemed  

that  the  Petitioner's  voluntary  retirement  

application had been accepted.  Once that is not  

accepted, the entire case of the Petitioner falls  

to the ground.  The decision in  Tek Chand's case  

(supra) will not, therefore, have any application  

to the facts of this case, particularly when the  

Petitioner's  application  for  voluntary  retirement  

had  not been  accepted and  he had  been asked  to  

rejoin  his  services.   The  Petitioner  was  fully  

aware of this position as he continued to apply for  

leave after the notice period was over.  

15. We are not, therefore, inclined to interfere  

with  the  orders  impugned  in  the  Special  Leave  

Petition which is, accordingly, dismissed.

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16. Having regard to the facts of the case, there  

will be no order as to costs.   

...................CJI.    (ALTAMAS KABIR)

 .....................J.

(ANIL R. DAVE)   

 .....................J.

  (RANJANA PRAKASH DESAI) New Delhi Dated: July 03, 2013.