George v. Spices Board — 1991 DIGILAW 119 (KER)

Judgment :- When CMP. No. 3833/91 came up for orders, learned counsel appearing on either side wanted the original petition itself heard and disposed of. Accordingly I heard them at length. I am disposing of the original petition. 2. The short facts germane for decision of this case are as follows: Petitioner entered service as a Peon in the Cashew and Pepper Export Promotion Council on 16-9-1957. In 1960 there was a bifurcation of the Council The Department of Pepper was separated, A new wing was constituted as Spices Expert Promotion Council. With effect from 24-10-60 petitioner was absorbed in the Spices Export Promotion Council. On 26-5-79 he was posted as Dispatch Clerk. According to the service rules of the Spices Export Promotion council the age of retirement is 60 years. As per that Rule, petitioner is due to retire on 28-2-93. 3. As per the Spices Board Act, Act 1C of 1986 the Board was constituted by amalgamating the Spices Export Promotion Council with the Cardamom Board. Under S.6(1) of that Act, all properties and other assets vested in the Cardamom Board and the Spices Export Promotion Council became vested in the Spices Board. S.6(1)(e) of the Act provided; "Every employee holding any office under the Cardamom Board or the Spices Export Promotion Council immediately before such commencement shall on such commencement hold his office or service under the Board with the same rights and privileges as to pension, gratuity and other matters as would have been admissible to him if there had been no such vesting and shall continue to do so unless and until his employment under the Board is duly terminated or until his remuneration and other conditions of service are duly altered by the Board". As per that provision, petitioner is entitled to continue in service up to 60 years of age. 4. The Spices Board issued a direction to the effect that employees of the erstwhile Spices Export Promotion Council shall either opt the G.P.F. scheme and pension scheme with the retirement age at 58 years or to continue under the C.P.F. scheme with the age of retirement at 60 years. Petitioner expressed his option for G.P.F. scheme and pension scheme with retirement age at 58 years. That option was accepted by the Spices Board. Petitioner expressed his option for G.P.F. scheme and pension scheme with retirement age at 58 years. That option was accepted by the Spices Board. Consequently petitioner was directed to retire on 28-2-91 on his completing the age of 58 years, Before that date he resiled from the option and wanted to continue in service under the C.P.F. scheme with the age of retirement at 60 years. Petitioner was not allowed to continue in service. Hence this original petition. 5. A detailed counter affidavit has been filed raising the following contentions:- The Spices Board has drafted regulations governing the employees of the Board as a whole. The same will come into effect only when the Central Government grants approval of the same and notifies it in the official gazette. The approval and notification has not yet taken place. Therefore by virtue of S.6(3) of the Spices Board Act employees of the Cardamom Board and Spices Export Promotion Council continue to be governed by their respective service rules in their parent organizations. The employees of erstwhile Spices Export Promotion* Council are to continue in service till the superannuating at 60 years with the benefit of contributory provident fund. Government of India issued instructions in the matter of change over of employees from contributory provident fund to the pension scheme. Those instructions contemplated that all the contributory provident fund beneficiaries who were in service as on 1-1-86 should be brought over to the pension scheme unless they specifically opt to continue under the Contributory Provident Fund Scheme. In this context, a circular dated 8-9-87 was issued inviting option from the employees of the erstwhile Spices Export Promotion Council. In response to the circular petitioner gave option for the pension scheme with retirement age at 58 years. That option was accepted by the Board as evidenced by Ext. P9 memorandum. Therefore petitioner is not to continue in service beyond 58 years of age. 6. In Jai Ram v. Union of India ( A.I.R.1954 SC 584) a Constitution Bench of the Supreme Court had to deal with an identical situation. The facts of that case are as follows:-- The plaintiff entered the service of the Government as a Clerk in the Central Research Institute, Kasauli, on May 7, 1912. 6. In Jai Ram v. Union of India ( A.I.R.1954 SC 584) a Constitution Bench of the Supreme Court had to deal with an identical situation. The facts of that case are as follows:-- The plaintiff entered the service of the Government as a Clerk in the Central Research Institute, Kasauli, on May 7, 1912. Rule 56(6)(i) of Chapter IX of the Fundamental Rules, which regulated the Civil Services, provided that a ministerial servant may be required to retire at the age of 55, but should ordinarily be retained in service if he continues efficient, till the age of 60 years. The plaintiff was to complete 55 years on November 26,1946. On the 7th May, 1945 he wrote a letter to the Director of the Institute to the following effect: "Sir, having completed 33 years" service on the 6th instant, I beg permission to retire and shall feel grateful if allowed to have the leave admissible". The Director refused permission on the ground that the plaintiff could not be spared at that time. The plaintiff renewed his prayer by another letter, dated 30th May, 1945 and also asked for leave preparatory to retirement-four months on average pay and the rest on half average pay-from 1st June, 1945, or the date of his availing the leave, to the date of superannuating which was specifically stated to be the 26th of November 1946. This request was also declined. Two subsequent requests to the same effect, also met the same fate. On May 28,1946 plaintiff made a fourth application repeating his request. This time, the Director of the Institute sanctioned the leave preparatory to retirement on average pay for six months from 1-6-1946 to 30-11-1946, and on half average pay for five months and 25 days thereafter, the period ending on 25-5-1947. Just 10 days before this period of leave was due to expire, the plaintiff on May 16,1947 sent an application to the Director stating that he had not retired and asked for permission to resume his duties immediately. In reply, the Director informed him that he could not be permitted to resume his duties as he had already retired, having voluntarily proceeded on leave preparatory to retirement. The plaintiff made representations. Ultimately, the Government of India, by a letter dated 28-4-48, rejected his representation repeating the reasons intimated by the Director earlier to the plaintiff. 7. In reply, the Director informed him that he could not be permitted to resume his duties as he had already retired, having voluntarily proceeded on leave preparatory to retirement. The plaintiff made representations. Ultimately, the Government of India, by a letter dated 28-4-48, rejected his representation repeating the reasons intimated by the Director earlier to the plaintiff. 7. B.K. Mukherjee, J. (as he then was) observed: "It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer, to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but, he can be allowed to do so as long as he continues in service and not after it has terminated". Another Constitution Bench in Union of India v. Gopal Chandra Misra (AIR 1978 SC 694J concurred with the above observation. 8. In Balram Gupta v. Union of India (AIR 1987 SC 2354) the facts were as follows:- An employee who had put in 20 years of service wrote a letter on 24-12-80 to the appointing authority seeking voluntary retirement on 31-3-91. He wrote that the notice period of 3 months be treated from 1-1-81. By an order dated 20-1-81 he was allowed to retire voluntarly from service with effect from 31-3-81. In the meantime on 31-3-81 he withdrew his notice on the ground that on account of persistent and personal requests from the staff members he had changed his mind. He was relieved by order dated 31-3-81 in which it was also mentioned his withdrawal application was considered and was found not acceptable. The employee was allowed to continue in service and the learned judge observed: "We hold, therefore, that there was no valid reason for withholding the permission by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and induced the appellant to withdraw the notice. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and induced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circuitous ways "to ease out" uncomfortable employees. As a model employer the government must conduct itself with high probity and candour with its employees." 9. An employee of the Punjab National Bank sent a communication to the Bank by which he purported to resign from a future date. He also stated that the date of receipt of his letter should be treated as date of commencement of notice period. The bank informed him that his resignation was accepted with immediate effect by waiving the condition of notice. Subsequently the employee wanted to resile from that letter of resignation and to continue in service. In such situation, the Supreme Court in Punjab National Bank v. P.K. Mittal (AIR 1989 SC 1083) declared that the employee continues to be in service with the bank. According to their Lordships withdrawal of resignation before the date on which resignation would have become effective is a right available to the employee. 10. It is common case that as per the service conditions of the employees of the erstwhile Spices Export Promotion Council the age of superannuating is 60 years with the benefit of contributory provident fund. This statutory provision has not been altered till date. While the conditions of service as per the Rules stand as such, respondents issued a circular inviting option of the employees of the erstwhile Spices Export Promotion Council either to come over to the pension scheme with retirement age at 58 years or to continue under the contributory provident fund scheme with the retirement age of 60 years. While the conditions of service as per the Rules stand as such, respondents issued a circular inviting option of the employees of the erstwhile Spices Export Promotion Council either to come over to the pension scheme with retirement age at 58 years or to continue under the contributory provident fund scheme with the retirement age of 60 years. Petitioner expressed his option to come to the pension scheme with retirement age of 58 years. But before that option materialised on 28-2-91 he expressed his intention to continue under the C.P.F. scheme till he completes the age of 60 years. Learned counsel representing the respondents would contend that the form of option is a contract. By the exercise of the option a completed contract has been entered into and that the petitioner cannot be allowed to back out of that contract. In support of this argument he relies on the decision of the Supreme Court in N. Lakshmana Rao v. State of Karnataka (AIR 1975 SC 1646). The facts of that case has no connection whatsoever with the one before me. So the said decision cannot have any help to the respondents. 11. Petitioner has clearly expressed his intention to continue in service in terms of the statutory provision contained in S.6(e) of the Spices Board Act i.e. he wants to continue till he completes the age of superannuating at 60 years with the benefit of contributory provident fund. This right of the petitioner cannot be denied on the basis that he had expressed his intention to come to the pension scheme with the age of superannuating at 58 years. In view of what has been stated above, I allow this original petition and direct the respondents to permit the petitioner to continue in service till he completes the age of 60 years. Issue photo copy of the judgment to the parties on usual terms.