C.V. FRANCISversusUNION OF INDIA & ORS.

                     [2013] 8 S.C.R. 53


                        C.V. FRANCIS                               A -
                               v.
                UNION OF INDIA & ORS.
    (Special Leave Petition (Civil) No. 31250 of 2011)

                        JULY 3, 2013
                                                                   B
[ALTAMAS KABIR, CJI, ANIL R. DAVE AND RANJANA
             PRAKASH DESAI, JJ.]

    Service Law:
                                                                   c
      Voluntary Retirement Scheme - Employee seeking
benefit under- Without waiting for the acceptance thereof, went
on leave and took employment elsewhere - His leave not
extended - On his failure to join duty, disciplinary proceedings
initiated for unauthorized absence from duty and his seniices      0
terminated - High Court upheld the termination - Held:
Decision as regards grant of benefit under Voluntary
Retirement Scheme is at the discretion of the employer,
unless where the Scheme itself provides for the retirement to
take effect at the end of notice period - In the instant case,     E
there was no such stipulation under the Scheme - The
employee was rightly terminated.

    The petitioner applied to avail benefits under
voluntary Retirement Scheme introduced by the
r~spondent-Company. Without waiting for acceptance of F
his application seeking voluntary retirement, he
proceeded to the United States after availing leave for one
month and obtained employment there. From there, he
applied for further leave, which was rejected and was
asked to join. Since he did not join his duties, Disciplinary G
proceedings were initiated against him for unauthorized
absence from duty. At the instance of the petitioner, High
Court directed to consider his representation seeking to
accept his request of voluntary retirement and'to drop
                              53                                   H
    54       SUPREME COURT REPORTS            [2013] 8 S.C.R.


A disciplinary proceedings. His representatic.n was rejected
  by respondent-State, and finding him guilty in the
  Departmental Proceedings, his services were terminated.
  His writ petition, challenging the termination order, was
  dismissed by Single Judge of High Court and the order
B was further confirmed by Division Bench of High Court
  in the writ appeal.

       In the instant special leave petition, the petitioner
  inter alia contended that his application for voluntary
  retirement must be deemed to have been accepted on the
C expiry of notice period and thus disciplinary proceedings
  and termination order were invalid.

         Dismissing the petition, the Court

0      HELD: 1. 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
E 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. [Para 13)
F [60-C-E]
      2. In the instant case, there was no such 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.
G Once that is not accepted, the entire case of the
  Petitioner falls to the ground. 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
H period, the Petitioner moved to the United States, having
    56       SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A 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
s 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
C contemplated against him for unauthorised absence. In the
  absence of any response from him, the Respondent Company
  once again wrote to the 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
D 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
E 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
F 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 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
G 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
H were terminated.
      C.V. FRANCIS v. UNION OF INDIA & ORS.                 55


obtained employment there and his letters praying for A
leave were of no consequence. [Paras 12 and 1"·1 [60-A-
B, F-G]

   Tek Chand vs. Dile Ram (2001) 3 SCC 290: 2001 (1)
SCR 527 - distinguished.                                          B

    Padubidri Damodar Shenoy vs. Indian Airlines Limited
and Anr. (2009) 10 SCC 514: 2009 (14) SCR 356 - referred
to.
                      Case Law Reference:                         c
    2001 (1) SCR 527           distinguished         Para 14
    2009 (14) SCR 356          referred to           Para 10
     CIVIL APPELLATE JURISDICTION : Special Leave
Petition (Civil) No. 31250 of 2011.               D

    From the Judgment and order dated 13.06.2011 of the
High Court of Jharkhand at Ranchi in LPA No. 283 of 2009.

    C.V. Francis, Petitioner-in-Peson.                            E
     Dhruv Mehta, Anurag Sharma (for AP & J Chambers) for
the Respondents.

    The Judgment of the Court was delivered by
                                                                   F
    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 G
the Petitioner also applied on 7.4.1998 to avail the benefits of ·
the Scheme. The 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 H
           C.V. FRANCIS v. UNION OF INDIA & ORS.                    57
                   [ALTAMAS KABIR, CJI.]
          4. The said Order was challenged by the Petitioner in the       A
      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.                 B
           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
                                                                       c
      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 D
      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 E
      rendered in the context of an election, incidentally the question
      of voluntary retirement also came up for consideration. The
      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 F
      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.
                                                                        G
-"'   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          H
    58        SUPREME COURT REPORTS                [2013] 8 S.C.R.


A   pointed that under Sub-rule (1) at any time after the Government
    servant has completed twenty years' qualifying 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
B   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
c   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
D ineffective on expiry of the said period of the notice.
   Accordingly, the subsequent letter 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
E 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
F   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
G   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. Mr. Mehta pointed out that
    without waiting for his prayer for voluntary retirement to be
H   accepted, the Petitioner joined an American Company even
      C.V. FRANCIS v. UNION OF !NOIA & ORS.                   59
              [ALTAMAS KABIR, CJI.]
before the expiry of the notice period. In fact, it was quite A
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 B
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       c
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 been discontinued on the
expiry of the three months' notice period, inasmuch as, he
continued to attend his duties. Thus, the application for voluntary
                                                                    0
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,    E
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.                             F

     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 the High Court, rejecting the Petitioner's prayer
challenging the termination of his services. It may be noted that G
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
                                                                  H
    60       SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A   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
B   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 Petitioner
c   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.
D   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
E   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
F   of notice given by him must fail, since there was no such
    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,
G   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.
H
         C.V. FRANCIS v. UNION OF INDIA & ORS.            61
                 [ALTAMAS KABIR, CJI.]

    15. We are not, therefore, inclined to interfere with the   A
orders impugned in the Special Leave Petition which is,
accordingly, dismissed.

    16. Having regard to the facts of the case, there will be
no order as to costs.                                           B
K.K.T.                                      SLP dismissed.